CHAPTER 21. UNIFORM RECIPROCAL
ENFORCEMENT OF SUPPORT ACT
Commentary by Charles P. Bubany*
Introductory Commentary
In our highly mobile society, persons to whom support is owed
are often faced with the problem of enforcing support obligations
against a party who has left the state and is no longer within the
personal jurisdiction of that state's courts. The uniform laws for
reciprocal interstate enforcement of support obligations were developed as a means of reaching persons with support obligations to
dependents when the affected persons no longer reside within a
single state.
The original version of the Uniform Reciprocal Enforcement
of Support Act (URESA or the Act)1 was promulgated by the
Commissioners on Uniform State Laws in 1950 and was revised in
1958 and again in 1968. URESA or a similar statute has been enacted in every state. More than half the states have adopted the
1968 revision (RURESA), while a substantial number have
adopted the 1958 version, on which chapter 21 of the Texas Family
Code is based. I
URESA contains three separate enforcement devices: (1) interstate criminal enforcement; (2) interstate and intrastate civil en• Professor of Law, Texas Tech University School of Law; B.A., St. Ambrose College;
J.D., Washington University (St. Louis). The assistance of Kathryn J. Beer and Randolph
H. Grambling, third-year students at the Texas Tech University School of Law, is gratefully
acknowledged.
1. UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT, 9A U.L.A. 643 (1979). See W.
BROCKELBANK & F. INFAUSTO, INTERsTATE ENFORCEMENT OF FAMILY SUPPORT 4 (2d ed. 1971)
[hereinafter cited as BROCKELBANK). A predecessor of URESA is the Uniform Support of
Dependents Law (USDL) adopted by New York and ten other states in 1949. BROCKELBANK,
supra, at 4. New York and Iowa are the only jurisdictions still retaining USDL, which is
substantially the same as URESA. See Danis v. Stillerman, 66 A.D.2d 818, 411 N.Y.S.2d 353
(1978). Iowa has added substantial portions of URESA. See Engelson v. Mallea, 180 N.W.2d
127, 131 (Iowa 1970).
2. See Note, Uniform Reciprocal Enforcement of Support Act, 20 WASHBURN L.J. 409,
409 n.1 (1981).
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forcement; and (3) registration of foreign support orders. Under
the civil enforcement provisions of the ACt, the following steps are
contemplated: (1) Filing a petition by the dependent family in the
state of its residence (the initiating state); (2) mailing this petition
to the state where the parent obligor is residing (the responding
state); (3) obtaining personal jurisdiction by the responding state
of the obligor; (4) holding a hearing at which, if the obligor is
found liable for support of his dependents, the amount of support
will be determined or, if the petition is to register a foreign support
order, on a determination of its validity, the foreign judgment will
be confirmed; and (5) collecting the money owed by the responding
state's ordinary judicial processes.
Since URESA's adoption in Texas in 1965, there have been
relatively few Texas appellate court decisions interpreting its provisions, and few legislative changes. But as URESA becomes a
more frequently used means of enforcing support payments, issues
concerning the application of the Act that have arisen in other jurisdictions may be encountered in Texas. Accordingly, judicial interpretations of similar legislation in other states are included in
this commentary on the Texas Act.
§ 21.01. Short Title
This chapter may be cited as the Uniform Reciprocal
Enforcement of Support Act.
Commentary
The original 1950 version of URESA was adopted in Texas in
1951. 8 In 1965, the 1958 revision of URESA was enacted in its
place.· The Act was codified in the new Texas Family Code of 1973
as chapter 21.11 The 1968 revision of URESA, dubbed "RURESA"
by the Commissioners on Uniform State Laws, has not been en
3. 1951 Tex. Gen. Laws, ch. 377, at 643.
4. 1965 Tex. Gen. Laws, ch. 679, at 1561 (formerly codified at TEx.
ANN. art. 2328b-4 (Vernon 1971».
5. 1973 Tex. Gen. Laws, ch. 543, § I, at 1433.
REV.
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CIV.
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URESA
§21.02
acted in Texas. 8
The constitutionality of URESA is apparently well settled. It
has withstood a variety of constitutional challenges.?
§ 21.02. Purposes
The purposes of this chapter are to improve and extend by reciprocal legislation the enforcement of duties
of support and to make uniform the law with respect
thereto.
Commentary
URESA was designed to supplement long-arm jurisdiction by
providing a simplified, consistent, and expeditious two-state mechanism for interstate enforcement of support owed by a person residing in another state, with minimum expense and without the
necessity of the obligee's traveling to another state. 8 Many of the
cases involving URESA are routine, but the Act is nevertheless "an
area of the law which presents a considerable number of
problems."1
The goal of uniformity is difficult to achieve in both theory
and practice. The law in some respects is "neither uniform nor reciprocal."lO It is possible, for example, that under the law of the
responding state, which is to apply its own law, the extent of the
respondent's duty may be different than in the initiating state or
6. Chapter 21 underwent minor changes in 1975. See Smith, Texas Family Code Symposium Supplement-Title 2. Parent and Child, 8 TEx. TECH L. REv. 19, 107-10 (1976)
[hereinafter cited as Smith Supp.). Further changes were made in 1981. TEx. FAY. CODE
ANN. ch. 21 (Vernon Supp. 1982).
7. See Note, supra note 2, at 420 nn.132-39.
8. See Ackerman v. Yanoscik, 601 S.W.2d 72, 73 (Tex. Civ. App.-Houston [1st Dist.)
1980, no writ); O'Halloran v. O'Halloran, 580 S.W.2d 870, 871-72 (Tex. Civ. App.Texarkana 1979, no writ); Raney v. Raney, 536 S.W.2d 617, 619 (Tex. Civ. App.-Tyler
1976, no writ).
9. Schlect v. Schlect, 387 A.2d 575, 579 (D.C. 1978) (Harris, J., concurring and
dissenting).
10. Sampson, Texas Family Code Symposium Supplement-Jurisdiction in Divorce
and Conservatorship Suits, 8 TEx. TECH L. REV. 159,176 (1976) [hereinafter cited as Sampson Supp.).
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perhaps may be found not to exist at all. l1 This difference is ameliorated, however, by the registration-of-judgments provision,
which is limited to determining the existence of a valid judgment
of support in the initiating state. I I
As a practical matter, enforcement is inconsistent. "Resort to
URESA is sometimes only theoretically possible because prosecuting officers in some states are less than diligent in pursuing delinquent obligors."18 This fact is implicitly recognized by the
RURESA provision allowing the state's attorney general to take
the case when the local prosecutor fails to pursue it14 and by the
1975 addition to the Texas law authorizing court appointment of
an attorney for the URESA petitioner. 111
1 21.03. Definitions
In this chapter, unless the context requires a dUrerent definition:
(1) "State" includes any state, territory, or possesion of the United States and the District of Columbia in which this or a substantially similar reciprocal
la w has been enacted and includes a foreign nation
or a state of a nation declared to have a similar reciprocal law as provjded in Section 21.07 of this
code.
(2) "Initiating state" means any state in which a
proceeding pursuant to this or a substantially similar reciprocal law is commenced.
11. See, e.g., Pennsylvania ex rei. Dep't of Pub. Assistance v. Mong, 160 Ohio St. 455,
117 N.E.2d 32 (1954) (duty to support parent although such duty in initiating state found
not to exist in responding state); Burney v. Vance, 17 Ohio Misc. 307, 246 N.E.2d 371 (C.P.
1969) (duty of child support to age 21 found although in state of divorce duty ended at age
18).
12. See TEx. FAM. CODE ANN. § 21.65 (Vernon 1975); commentary to § 21.65 infra.
13. Sampson Supp., supra note 10, at 174. See Fox, The Uniform Reciprocal Enforcement of Support Act, 12 FAM. L.Q. 113, 124 (1978).
14. UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT Ar:r § 18(c), 9A U.L.A. 694 (1979)
(1968 Revised Act) [hereinafter cited as RURESA).
15. TEx. FAM. CODE ANN. § 21.03(15) (Vernon Supp. 1982).
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URESA
§21.03
(3) "Responding state" means any state in which
any proceeding pursuant to the proceeding in the ini-.
tiating state is or may be commenced.
(4) "Court" means the district court of this state
and when the context requires, means the court of
any other state as defined in a substantially similar
reciprocal law.
(5) "Law" includes both common and statute law.
(6) "Duty of support" includes any duty of support imposed or imposable by law, including duties
imposed by Chapter 12 or 13 of this code, or by any
court order, decree, or judgment, whether interlocutory or final, whether incidental to a proceeding for
divorce, judicial separation, separate maintenance,
or otherwise, but shall not include alimony for a former wife.
(7) "Obligor" means any person owing a duty of
support.
(8) "Obligee" means any person to whom a duty
of support is owed and a state or political subdivision thereof.
(9) "Governor" includes any person performing
the functions of governor or the executive authority
of any territory covered by the provisions of this
chapter.
(10) "Support order" means any judgment, decree, or order of support, whether temporary or final,
whether subject to modification, revocation, or remission, regardless of the kind of action in which it
is entered.
(11) "Rendering state" means any state in which
a support order is originally entered.
(12) "Registering court" means any court of this
state in which the support order of the rendering
state is registered.
(13) "Register" means to record in the Registry
of Foreign Support Orders.
(14) "Certification" shall be in accordance with
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the laws of the certifying state.
(15) "Prosecuting attorney" means the criminal
district attorney, an attorney designated by the
court, or the county attorney, or the district attorney
where there is no criminal district attorney, attorney
designated by the court, or county attorney.
(16) "Custody" includes managing conserva tors hip.
Commentary
The definition of "state" in section 21.03(1) was expanded in
1975 to include foreign nations or states that have been "declared
to have a similar reciprocallaw."16 This declaration is reserved by
section 21.07 for the Texas Attorney General, rather than the
court; the court makes the reciprocity determination in cases involving enforcement of domestic support obligations. 17 When
Texas is acting as the "initiating state," a Texas court determines
whether the state to which it will forward a URESA petition would
be able to initiate a similar proceeding because it has enacted
URESA or a "substantially similar reciprocal law." Likewise, when
Texas is acting as the "responding state," the Texas court must
determine whether the initiating state has a "substantially similar
reciprocal law." The attorney general's determination that the foreign legislation is merely "similar" rather than "substantially similar" is probably of little practical significance. Identity of language
or provisions is not necessary to a finding of reciprocity. IS Moreover, even significant differences in the respective state laws over
the nature and extent of support obligations will not render the
laws nonreciprocal. l9
The definition of "duty of support" is intended to be inclu16. 1975 Tex. Gen. Laws, ch. 476, § 46, at 1270.
17. TEX. FAM. CODE ANN. § 21.07 (Vernon Supp. 1982).
18. Hodges v. Hodges, 202 Misc. 71, _, 108 N.Y.S.2d 286, 289 (Dom. ReI. Ct. 1951);
Commonwealth ex rei. Shaffer v. Shaffer, 175 Pa. Super. 100, _, 103 A.2d 430, 433 (1954).
See Annot., 42 A.L.R.2d 768 (1955).
19. Danis v. Stillerman, 66 A.D.2d 818, _, 411 N.Y.S.2d 353, 354 (1978); Commonwealth ex reI. Shaffer v. Shaffer, 175 Pa. Super. 100, _, 103 A.2d 430, 434 (1954).
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URESA
§21.03
sive,20 embracing all common-law and statutory duties of support21
and all duties growing out of judgments or decrees, pertaining to
amounts either in arrears,22 currently owed, or to become due. By
specifically incorporating the duties of chapters 12 and 13, the definition includes the equal duty of the father and mother to support
their children when the parent-child relationship is established by
law2s or judicial decree. U Hence, the duty of support includes provisions for the child's clothing, food, shelter, medical care, and education. 26 An important exception from the duty of support is alimony for a former wife, which is not permissible under Texas
law. 26
The term "obligor" under the Act refers to the person who
owes the duty of support, often the runaway spouse; the obligor is
the respondent or defendant in a URESA action.
The definition of "obligee" is in artfully worded, but presumably is intended to refer either to the person, adult or minor, who is
owed the duty of support or to a public agency seeking reimbursement for support it has furnished or suing on the individual obligee's behalf for future support.27 The obligee is the petitioner in a
URESA action unless he is a minor, in which case the person having legal custody is the proper petitioner. 28
The definition of "support order" is inclusive and makes clear
that even a modifiable foreign support order may provide the basis
for either a URESA civil enforcement or a registration proceeding.
The foreign support order need not be "final" in the strict sense. 29
20. BROCKELBANK, supra note 1, at 38.
21. See TEx. FAM. CODE ANN. § 21.03(5) (Vernon 1975).
. 22. See id. § 21.23.
23. [d. §§ 12.01-.02 (Vernon 1975 & Supp. 1982).
24. [d. § 13.08 (Vernon Supp. 1982) (paternity decree); id. § 13.21 (voluntary legitimation by father).
25. See Woodruff v. Woodruff, 487 S.W.2d 791, 793 (Tex. Civ. App.-Texarkana 1972,
no writ); TEx. FAM. CODE ANN. § 4.02 (Vernon Supp. 1982).
26. Francis v. Francis, 412 S.W.2d 29, 32 (Tex. 1967).
27. See TEx. FAM. CODE ANN. § 21.22 (Vernon 1975).
28. [d. § 21.27.
29. Child support orders generally are not entitled to full faith and credit because they
are modifiable in the state where rendered. But the tendency of courts is to respect foreign
support judgments as a matter of comity. See H. CLARK, LAW OF DOMESTIC RELATIONS § 15.4
(1968).
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The terms "rendering state" and "registering state" are to a
URESA registration proceeding what the terms "initiating state"
and "responding state" are to a URESA proceeding for civil enforcement. Curiously, the registration provisions of the Act do not
once use the terms "rendering state" and "registering state." Their
inclusion in the definition section affirms the distinction between
registration and confirmation of foreign support orders, on the one
hand,30 and civil enforcement to obtain a judgment independent of
or in addition to a foreign decree, on the other.31
"Certification" refers to the finding of the court in the initiating state, where the URESA petition is originally filed, that "probable cause" exists from the facts of the petition to transmit the
petition to the responding state. 32 The apparent intent of the requirement in section 21.03(14) that the certification "be in accordance with the laws of the certifying state" is that the adequacy of
the certificate is to be determined by the law of the initiating state
and is not subject to review by the court in the responding state.as
The ultimate duty of the respondent obligor is determined, on the
other hand, by the law of the responding state. M
The local prosecutor is the individual who has traditionally
been charged with the responsibility of prosecuting the obligee's
claim in the responding state's court. Pararaph (15) allows the
court to designate a private attorney to handle the URESA petition, as it may do under Texas Rules of Civil Procedure 30B-Ala in
actions to enforce a support order under section 14.09 of the Texas
Family Code. 36 This capability on the part of the judge could be
utilized to respond to the low priority typically given these claims
by local prosecutors. 37
30. TEx. FAM. CODE ANN. §§ 21.61-.66 (Vernon 1975 & Supp. 1982) (Subchapter D.
Registration of Foreign Support Orders).
31. Id. §§ 21.21-.45 (Subchapter C. Civil Enforcement).
32. Id. § 21.28 (Vernon Supp. 1982).
33. See commentary to § 21.28 infra.
34. TEx. FAM. CODE ANN. § 21.21 (Vernon 1975).
35. TEX. R. CIV. P. 308-A.
36. See TEX. FAM. CODE ANN. § 21.39 (Vernon Supp. 1982) authorizing the court to
order payment of attorneys' fees by the obligor to the attorney representing the URESA
petition. H. CLARK, supra note 29, § 6.6, at 208.
37. Fox, supra note 13, at 124; Comment, Enforcement of Child Support Obligations
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The prOViSion in 'paragraph (16) that "custody" includes
"managing conservatorship" was intended to conform the provisions of chapter 21 to those of subtitle A of the Code. 8s Only a
person having "legal custody" may bring an action on behalf of a
minor-obligee under URESA.88 In the euphemistic lexicon of subtitle A, which deals with possession of the child, the managing conservator is that person.·o The possessory conservator (akin to the
former noncustodial spouse with only visitation rights)" accordingly cannot be a URESA plaintiff even when the managing conservator has a duty of child support under the terms of his (usually
"her") court appointment.
1 21.04. Remedies
The remedies herein provided are in addition to and
not in substitution for any other remedies even though
prior orders of support exist in this state or any other
jurisdiction.
Commentary
This important section establishes URESA as a separate civil
remedy that is ancillary to all existing remedies. Accordingly, a
URESA judgment is not a bar to other proceedings seeking to enforce the same support obligation,·· nor is the existence of other
orders relating to the support obligation a bar to a parallel URESA
action. n Consistent with this approach, any URESA payments
of Absent Parents-Social Services Amendments of 1974, 30 Sw. L.J. 625, 630 (1976).
38. Smith, Texas Family Code Symposium-Title 2. Parent and Child, 5 TEx. TECH
L. REV. 389, 462-63 (1974).
39. TEx. FAY. CODE ANN. § 21.27 (Vernon 1975).
40. [d. § 14.04 (Vernon Supp. 1982).
41. [d.
42. Kitchen v. Kitchen, 304 N.W.2d 694, 696 (N.D. 1981). See also Stubblefield v.
Stubblefield, 272 S.W.2d 633, 635 (Tex. Civ. App.-Texarkana 1954, no writ).
43. Adams v. Adams, 441 S.W.2d 917, 920 (Tex. Civ. App.-Houston [1st Dist.] 1969,
no writ). See Raney v. Raney, 536 S.W.2d 617, 619 (Tex. Civ. App.-Tyler 1976, no writ);
Strader v. Strader, 517 S.W.2d 905,908 (Tex. Civ. App.-Waco 1974, no writ). An exception
would be an order in the court of the initiating state that constitutes a decree that no duty
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would be credited against amounts ordered to be paid in another
parallel action. 44
Section 21.04 should be read in connection with section 21.42,
which provides that no proceeding under URESA is to be stayed
because of the pendency of any other proceeding relating to the
parent-child relationship, including the support obligation. The
second clause in section 21.04 was added in 1981 to conform to
amendments that eliminated the necessity under prior law of
transferring any URESA action to a Texas court that had continuing jurisdiction because it had issued the original support order. 46
Now, pendency of suits or the existence of orders in this or another
state relating to the parent-child relationship, such as a divorce
proceeding or a custody or support order from a divorce court,
does not affect the jurisdiction of the court receiving the URESA
petition.
§ 21.05. Extent of Duty of Support
Duties of support arising under the law of this state,
when applicable under Section 21.21 of this code, bind
the obligor, present in this state, regardless of the presence or residence of the obligee.
Commentary
The primary goal of URESA is to create an effective civil remedy to enforce support of abandoned wives and children when the
roving husband-father absconds to another state;46 however, the
URESA remedy is also available when the wife and children leave
the state of common domicile. 47
of support exists. Chance v. LaPausky. 43 Md. App. 84. _. 402 A.2d 1329. 1330 (1979).
44. 'FEX. FAM. CODE. ANN. § 21.43 (Vernon 1975); see Ray v. Ray. 277 S.E.2d 495. 496
(Ga. 1981).
45. TEX. FAM. CODE ANN. §§ 21.24. 21.28. 21.31. 21.45 (Vernon Supp. 1982) were
amended in 1981 to eliminate the "continuing jurisdiction" bar to a URESA action.
46. BROCKELBANK. supra note 1. at 4.
47. Vigil v. Vigil. 30 Colo. App. 452. _. 494 P.2d 609. 611 (1972); People ex rei. Kerl
v. Kerl. 75 Ill. App. 3d 347. _. 393 N.E.2d 1305. 1307 (1979); Commonwealth v. Mexal. 201
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URESA
§21.06
A URESA action will lie even in those instances in which the
petitioner-obligee and respondent-obligor reside in the same state,
but in that case the intrastate rather than the interstate procedure
under URESA is appropriate.· 8 The obligor's presence in the responding state is the critical fact necessary for assertion of personal jurisdiction.· 9
The intent of URESA, at least as to interstate claims, is to
eliminate the necessity of petitioner's presence in the responding
court. The Act states that the petitioner is not subject to personal
jurisdiction for any other cause of action in the responding court
because of the petition.IIO Moreover, when the petitioner is not present in the responding court, assertion of other causes of action
against the petitioner would likely violate due process. III
§ 21.06. Uniformity of Interpretation
This chapter shall be so interpreted and construed as
to effectuate its general purpose to make uniform the
law of those states which enact it.
Commentary
The tendency of courts in interpreting URESA is to effectuate
its general objective of providing support for dependents and to
avoid giving defaulting obligors a "procedural field day" by getting
bogged down in technicalities or getting involved in complex, collateral issues.1I2 One court has stated that" 'every endeavor should
be made by the courts to render this statute operable, for the
objectives of the legislation are very worthy.' "IIS A liberal approach
Pa. Super. 457, _, 193 A.2d 680, 682 (1963).
48. Hansen v. Hansen, 207 Misc. 589, _, 142 N.Y.S.2d 248, 250 (Child. Ct. 1955).
49. See Kulko v. Superior Court, 436 U.S. 84, in (1978).
50. TEX. FAM. CODE ANN. § 2l.44 (Vernon 1975).
5l. May v. Anderson, 345 U.S. 528, 534 (1953) (child custody); see Note, supra note 2,
at 423.
52. Thompson v. Kite, 214 Kan. 700, 522 P.2d 327 (1974); Kirby v. Kirby, 338 Mass.
263, 155 N.E.2d 165 (1959).
53. Daly, Daly, 21 N.J. 599, _, 123 A.2d 3, 6 (1956) (quoting Pfueller v. Pfueller, 37
N.J. Super. 106, _, 117 A.2d 30, 32 (App. Div. 1955».
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to interpreting the Act appears justifiable since most of the persons benefiting from the Act are needy.M But there are also spinoff
benefits to the public generally. In fact, it has been suggested that
a major reason for the Act's widespread adoption is its promise of
tax relief by shifting the burden of supporting destitute families
from the state to the father-husband. 55 This purpose of the Act is
recognized in section 21.26, which makes it the duty of the prosecuting attorney to represent the plaintiff "upon the request of the
court or the Texas Department of Human Resources."58 Moreover,
URESA provides that the state or political subdivision furnishing
support to an obligee is a proper plaintiff and may seek reimbursement for support expenditures under the Act. 5'7
§ 21.07. Declaration of Reciprocity: Other Nations
(a) If the attorney general finds that reciprocal provisions are available in a foreign nation or the state of a
foreign nation for the enforcement of support orders issued in this state, the attorney general may declare the
foreign nation or a state of a foreign nation to be a reciprocating state for the purpose of this chapter.
(b) A declaration made under Subsection (a) of this
section may be revoked by the attorney general.
(c) A declaration by the attorney general made under
Subsection (a) of this section may be reviewed by the
court in an action under this title.
Commentary
Added in 1975, this section authorizes the Attorney General to
designate foreign nations or their states as reciprocating "states"
under the Act. Legislation substantially similar to section 21.07 has
been enacted in Guam,58 Puerto Rico,58 the Virgin Islands,80 and
54. BROCKELBANK, supra note 1, at 42.
55. Id. at 5.
56. TEX. FAM. CODE ANN. § 21.26 (Vernon Supp. 1982).
57. Id. § 21.22 (Vernon 1975).
58. GUAM CODE CIV. PRO. §§ 1500-1531 (1970).
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several Canadian provinces. 61 Although reserved for the Attorney
General, the designation apparently may be overruled by the court
in a URESA action. Reciprocal enforcement with a Canadian province has been upheld over a claim that such an international agreement violates the constitutional prohibition against individual
states entering into treaties with foreign governments. 611 URESA.
enforcement of a foreign judgment of paternity and child support
against a United States citizen will be denied if the foreign state
has no reciprocal law. 6s
1 21.08. Venue
Venue for initiating cases under this chapter is in the
county of the residence of the minor child for whom support is sought. Venue in all responding cases under this
chapter is in the county of the residence of the obligor.
Commentary
Venue is placed by this section in the court most likely to have
ready access to the information on which the URESA determination is made: the county of the dependent child's residence in the
initiating state and the county of the obligor's residence in the responding state. "Residence" for purposes of this section is not defined. Accordingly, the general rule for establishing residence for
venue purposes apparently would apply to determine the obligor's
residence. Under this test, a residence is (1) a fixed place of abode
within the individual's possession that is (2) occupied or intended
59. P.R. LAWS ANN. tit. 32, §§ 3311-3313 (1968).
60. V.I. CODE ANN. tit. 16, §§ 391-429 (1964 & Supp. 1980).
61. See ALTA. REV. STAT. ch. 313 (1970); Family Relations Act, B.C. REv. STAT. ch. 121
(1979); MAN. REV. STAT. ch. M20 (1970); N.B. REV. STAT. ch. R-4 (1973); NFLD. REV. STAT.
ch. 224 (1970); N.W.T. REV. ORO. ch. M3 (1974); N.S. REV. STAT. ch. 173 (1967); ONT. REv.
STAT. ch. 403 (1970); SASK. REV. STAT. ch. R-4 (1978) (known as Reciprocal Enforcement of
Maintenance Orders Acts, except in British Columbia and the Northwest Territories).
62. Blouin v. Dembitz, 367 F. Supp. 415 (S.D.N.Y.), aff'd, 489 F.2d 488 (2d Cir. 1973).
63. Nicol v. Tanner, 310 Minn. 68, 256 N.W.2d 796 (1976). A German judgment was
the basis for a URESA action when the action was initiated in Texas. Uhl v. Uhl, 524
S.W.2d 534 (Tex. Civ. App.-Fort Worth 1975, no writ).
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to be occupied consistently over a substantial period of time and
(3) is permanent rather than temporary.64 The definition of residence of a child for venue purposes in suits affecting the parentchild relationship (SAPCR), though not specifically made applicable to the URESA chapter, should probably be utilized in interpreting this section. 66
This section and the amendment of the provisions relating to
continuing jurisdiction66 make it clear that jurisdiction and venue
are not exclusively within the court that granted the original divorce, as was the case under the prior law. Now the intrastate procedure of URESA operates independently of the original divorce
court, as does its interstate counterpart. As has been held with respect to a SAPCR, a "plea of privilege" by the respondent-obligor
should be treated as a motion to transfer. 67
SUBCHAPTER B. CRIMINAL ENFORCEMENT
§ 21.11. Interstate Rendition
(a) The governor of this state may:
(1) demand from the governor of any other state
the surrender of allY person found in such other
state who is charged in this state with the crime of
failing to provide for the support of any person in
this state; and
(2) surrender on demand by the governor of any
other state any person found in this state who is
charged in such other state with the crime of failing
to provide for the support of any person in such
other state.
(b) The provisions for extradition of criminals not inconsistent herewith shall apply to any such demand al64. Petty v. Petty, 592 S.W.2d 423, 427 (Tex. Civ. App.-Dallas 1979, no writ).
65. TEx. FAM. CODE ANN. § 11.04 (Vernon 1975 & Supp. 1982).
66. See commentary to §§ 21.24, 21.42 supra.
67. See Brown v. Brown, 566 S.W.2d 378, 380 (Tex. Civ. App.-Corpus Christi 1978,
no writ) (holding that the venue and transfer provisions of the Family Code are intended to
supplant the general plea of privilege rules contained in the Texas Rules of Civil
Procedure).
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though the person whose surrender is demanded was not
in the demanding state at the time of the commission of
the crime and although he had not fled therefrom.
N either the demand, the oath nor any proceedings for extradition pursuant to this section need state or show that
the person whose surrender is demanded has fled from
justice, or at the time of the commission of the crime was
in the demanding or other state.
Commentary
Criminal extradition is an impractical remedy for nonsupport
because of its expense and its limited, if not counterproductive,
effects in the obtaining of support. ss Nonetheless, URESA contains
special interstate rendition provisions that overlap provisions of
the Uniform Criminal Extradition Act.s9 The two Acts are in pari
materia and should be construed together. 70
Similar to the Criminal Extradition Act, section 21.11 gives
the governor the power to demand the surrender of anyone physically present in another state who has been charged with the criminal offense of failure to support dependents71 in the forum state.
But it goes one step further in subsection (b) to provide that the
accused need not be a fugitive from justice in the demanding state
nor have been present in the demanding state at the time of the
commission of the alleged offense. 72 The Criminal Extradition Act
applies to acts outside the demanding state only if they "intentionally" result in a crime in the demanding state. 78 Thus, a husband68. Brockelbank, Uniform Reciprocal Enforcement of Support Act, 5 ARK. L. REV.
349, 352 (1951).
69. TEx. CODE CRIM. PRO. ANN. art. 51.13 (Vernon 1979).
70. Ex parte Coleman, 157 Tex. Crim. 37,245 S.W.2d 712 (1952). See also In re Morgan, 244 Cal. App. 2d 903, 53 Cal. Rptr. 642 (1966); Aikens v. Turner, 241 Ga. 401, 245
S.E.2d 660 (1978).
71. See TEx. PENAL CODE ANN. § 25.05 (Vernon 1974).
72. The constitutionality of a similar predecessor to § 21.11 was upheld as applied to
extradition by California of a "nonfugitive" father who had become delinquent in support
after leaving California and coming to Texas. Miller v. Decker, 411 F.2d 302 (5th Cir. 1969).
73. TEx. CODE CRIM. PRO. ANN. art. 51.13, §§ 3,6 (Vernon 1979). Note, however, that
several Texas cases upheld extradition of a father alleged to have committed the wrongful
act on the basis of § 6 of the Criminal Extradition Act even when the governor's requisition
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father who moves to state B and leaves his family in state A after
having provided proper support may nonetheless be extradited to
state A from state B for his nonsupport after moving to state B
whether or not he had formed an intent not to support before leaving state A.H
§ 21.12. Conditions of Interstate Rendition
~
(a) Before making the demand on the governor of
any other state for the surrender of a person charged in
this state with the crime of failing to provide for the support of any person, the governor of this state may require any prosecuting attorney of this state to satisfy
him that at least 60 days prior thereto the obligee
brought an action for the support under this chapter, or
that the bringing of an action would be of no avail.
(b) When under this chapter or a substantially similar act, a demand is made upon the governor of this state
by the governor of another state for the surrender of a
person charged in the other state with the crime of failing to provide support, the governor may call upon any
prosecuting attorney to investigate or assist in investigating the demand, and to report to him whether any action for support has been brought under this chapter or
would be effective.
(c) If any action for the support would be effective
and no action has been brought, the governor may delay
honoring the demand for a reasonable time to permit
prosecution of an action for support.
(d) If an action for support has been brought and the
person demanded has prevailed in that action, the goverfrom the demanding state did not contain allegations or evidence that the father's wrongful
act intentionally resulted in a crime in the demanding state. Ex parte Hagar, 434 S.W.2d
675 (Tex. Crim. App. 1968); Ex parte Jennings, 434 S.W.2d 673 (Tex. Crim. App. 1968). See
Comment, Extradition and the Runaway Pappy, 2 TEx. TECH L. REV. 81, 85 (1970).
74. See Brockelbank, Is the Uniform Reciprocal Enforcement of Support Act Constitutional?, 17 Mo. L. REV. 1, 11 (1952).
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nor may decline to honor the demand.
(e) If an action for support has been brought and pursuant thereto the person demanded is subject to a support order, the governor may decline to honor the demand so long as the person demanded is complying with
the support order.
Commentary
This section provides a sensible flexibility to the executives of
both the demanding and asylum states that is consistent with the
remedial purpose of URESA. Before seeking rendition, the demanding state's governor may first direct the local prosecutor to
determine whether an action for support under URESA has been
brought more than sixty days prior to such determination or would
be ineffective. The intent of this section is that the governor will
delay the demand until a potentially more productive civil remedy
has been attempted and failed, but the language is permissive to
avoid a constitutional transgression of the separation of powers
doctrine. 711 Likewise, the governor of the asylum state on receiving
the demand may require the local prosecutor to investigate
whether a support action has been brought or would be effective.
The demand for surrender may be stayed for a reasonable time
pending the initiation or completion of a civil proceeding for support. If the person demanded either prevails in the responding
court or complies with the terms of the support order, the governor
may refuse the request for extradition. 76 The option of resorting to
75. BROCKELBANK, supra note I, at 23.
76. The early version of the Texas URESA (based on the 1950 Act) contained a provision that an obligor who submitted to the jurisdiction of the court of another state and
complied with that court's order of support was relieved of extradition for desertion and
nonsupport from the demanding state during the period of such compliance. See Ex parte
Miller, 382 S.W.2d 937, 938 (Tex. Crim. App. 1964). Under that provision, an obligor in
Texas apparently could seek an ex parte order of support in a Texas court that, if complied
with, would bar extradition. Ex parte Smith, 391 S.W.2d 433 (Tex. Crim. App. 1965). Compliance, however, had to be complete. [d. at 434. Moreover, by literal if not logical statutory
interpretation, the court found that an order relieving the obligor of support altogether was
not an order of support for which there could be compliance and thus would not bar extradition. Ex parte Miller, 382 S.W.2d at 939; see Ex parte Brito, 172 Tex. Crim. 409, 358
S.W.2d 122 (1962). Aside from the questionable constitutionality of such an ex parte order,
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civil enforcement in lieu of immediate rendition has the appeal of
eliminating undue hardship on the defaulting parent while inducing compliance with the support obligation. Such compliance is
more desirable than a conviction and is in fact often the main objective of threatened criminal prosecution for nonsupport. Because
of the benefits of delaying extradition to pursue the possibility of a
civil action, it has been suggested that the URESA procedure is
the more desirable basis for extradition in all nonsupport cases. 77.
However, in extradition cases in which the nonsupporting father is
alleged to be a fugitive, the governor in the asylum state nominally
has no discretion, but is constitutionally required to immediately
deliver the fugitive father to the demanding state without resort to
the alternative civil remedy.78 On the other hand, an extradition
demand not predicated on the presence of the obligor in the demanding state at the time of the commission of the crime should
be treated not under the Criminal Extradition Act but under
URESA.79
Counsel for an obligor named in the warrant should argue at
the executive hearing, which is typically granted in Texas on request,80 that the governor under subsection (c) should delay honoring the demand until an action for support is brought. The obligor
cannot challenge the merits of the criminal charge8} or raise the
existence of mitigating circumstances82 in the extradition proceedsee Griffin v. Griffin, 327 U.S. 220 (1946), it presented the potential for a "cheap immunity"
from extradition in a hometown, misinformed court. BROCKELBANK, supra note 1, at 25-26.
Thus, the 1958 version of URESA, on which the present Texas law is based, adopted the
position that compliance was a defense to extradition only if the support order was the
result of action actually brought on behalf of the obligee.
77. Comment, supra note 73, at 86-87.
78. Notwithstanding the mandatory language of U.S. CONST. art. IV, § 2, the governor's decision whether to honor the extradition demand is immune from judicial review.
Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861). The asylum state's governor has a
moral duty to honor the demand, however, and may fear retaliation by the demanding state
if he does not. R. MOSES, CRIMINAL DEFENSE SOURCEBOOK 781 (1974).
79. Ex parte Coleman, 157 Tex. Crim. 37, 245 S.W.2d 712 (1951). See also Cox v.
State, 180 So. 2d 467 (Fla. Diat. Ct. App. 1965) (URESA extradition an "additional
remedy").
80. R. MOSES, supra note 78, at 781.
81. Ex parte Gilbreath, 166 Tex. Crim. 64, 311 S.W.2d 851 (1958).
82. Ex parte Jennings, 434 S.W.2d 673 (Tex. Crim. App. 1968).
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ings themselves, but he may be able to do 80 in the support action.
From the perspective of the obligor, Texas is likely to provide a
more favorable and convenient climate in which to litigate the support issue than will the demanding state.
SUBCHAPTER C. CIVIL ENFORCEMENT
1 21.21. Choice of Law
Duties of support applicable under this chapter are
those imposed or imposable under the laws of any state
where the obligor was present during the period for
which support is sought; but shall not include alimony for
a former wife. The obligor is presumed to have been present in the responding state during the period for which
support is sought until otherwise shown.
Commentary
This section, which should be read with section 21.05, automatically applies the law of the state of the obligor's presence to
the determination by the responding state's court of the support
obligation. It constitutes a declaration of an interest in the enforcement by the state in which the obligor is present even when the
dependents who are not present may never become public charges
in the responding state. 88
It has been suggested that this section is an invitation to interstate flight to a jurisdiction with support laws more favorable to
the obligor. 8 • When unique duties of support are imposed in one
state but are not generally recognized by all states, this is perhaps
a real possibility. For example, even though Pennsylvania law imposed a duty on a child to support his father, an Ohio court found
no such duty while the child was residing in Ohio, which did not
impose a similar obligation.8& Because Texas courts will not order
83. BROCKELBANK, supra note I, at 31.
84. See Ehrenzweig, Interstate Recognition of Support Duties, 42 CAL. L. REV. 382,
385 (1954).
85. Pennsylvania ex rei. Dep't of Pub. Assistance v. Mong, 160 Ohio St. 455, 117
N.E.2d 32 (1954).
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alimony payments, some fathers could view Texas as a haven from
the obligation of alimony while the husband is present in this
state. However, in the case of traditional support obligations to
children, the discrepancies in the duties between jurisdictions are
not great. There is no real risk that the choice-of-Iaw provisions of
URESA will result in the creation of "new Nevadas" in the child
support context. 86
It has been noted that the Texas position on the enforcement
of foreign alimony awards is inequitable, if not inconsistent with
the full faith and credit clause, and makes the Texas law in this
respect "neither uniform nor reciprocal."87 Under the civil enforcement provisions of the Texas Act, alimony is specifically excluded
from a duty of support that will be enforced in Texas. 88 Only if
alimony as part of a foreign decree has been reduced to a judgment
for accrued amounts that are not subject to modification can it be
enforced through the registration of foreign judgments section of
the Act. 89 Under neither part of the Act will future alimony payments be ordered.
Under this section, the test to determine which law applies is
the presence of the obligor during the period for which support is
sought. The National Conference of Commissioners rejected using
a domicile test because of the difficulty in proving the obligor's intent to make a certain state his home. 90 Hence, in the great majority of cases, the law of the responding state where the obligor is
found will be applied. The presumption of the obligor's presence
during the period for which support is sought is created to handle
situations in which the obligee does not know the whereabouts of
the obligor before he is subjected to the jurisdiction of the responding court.9l The obligor has the burden of establishing the
inapplicability of the responding state's law in determining his ob86. BROCKELBANK, supra note I, at 36; Fox, supra note 13, at 117.
87. Sampson Supp., supra note 10, at 175-76.
88. TEx. FAM. CODE ANN. §§ 21.03(6), 21.21 (Vernon 1975 & Supp. 1982).
89. Parker v. Parker, 593 S.W.2d 857 (Tex. Civ. App.-Houston [1st Dist.j 1980, no
writ).
90. BROCKELBANK, supra note I, at 32.
91. Id. at 33.
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ligation because he was not present during the support period. 9l1
Under the original version of URESA, in effect in Texas until
1965, the choice-of-Iaw provision gave the obligee the option to
pick either the law of the state where the obligor was present during the time for which the support was sought or the law of the
state where the obligee was present when failure to support commenced. 93 In California v. COpUS,9" the Texas Supreme Court held
that a Texas man might be liable for' support to his indigent
mother on the basis of California law but only for payments that
had accrued while he was still in California, not those accruing after he had become a resident of Texas, which did not impose a
similar support duty.911 The court suggested that to apply the
choice-of-Iaw provisions of URESA literally would deny him equal
protection vis-a-vis other Texas residents. That rationale is questionable,96 but the effect of the existing section 21.21, which eliminates a choice by the. petitioner-obligee, is the same as in the
Copus case.
§ 21.22.
Support
State
or
Political
Subdivision
Furnishing
Whenever the state or a political subdivision thereof
furnishes support to an obligee, it has the same right to
invoke the provisions hereof as the obligee to whom the
support was furnished for the purpose of securing reimbursement of expenditures so made and of obtaining continuing support.
92. Daly v. Daly, 21 N.J. 599, _, 123 A.2d 3, 8 (1956). See Engelson v. Mallea, ISO
N.W.2d 127 (Iowa 1970) (where defendant present in Iowa, Iowa's limitation of child support to age 18 applied).
93. 1951 Tex. Gen. Laws, ch. 377, § 7, at 643 (repealed 1965).
94. 158 Tex. 196, 309 S.W.2d 227, cert. denied, 356 U.S. 967 (1958). See Bjorgo v.
Bjorgo, 402 S.W.2d 143 (Tex. 1966) (no equal protection problem in enforcing Kentucky
judgment against a Texas resident).
95. 158 Tex. at _, 309 S.W.2d at 230.
96. See H. CLARK, supra note 29, § 6.6, at 211-12. There is arguably a reason to treat
the obligor receiving the benefit of California's support payments to his mother differently
from other Texas residents.
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Commentary
This section responds to the problem of obligees who are willing to remain on welfare. Under its "subrogation" approach, a public agency providing support to dependents may bring a URESA
action not only for reimbursement but also for a continuing support order on behalf of the obligee.
In URESA actions in which the state is the real party in interest, the courts have refused to consider defenses by the obligor
based on the custodial parent's conduct, such as denial of visitation rights,97 even if such a defense would be allowed when the
individual parent initiated the action. 98 Since the state is subrogated to the rights of the minor-obligee, apparently the state may
recover for child support provided to a mother with actual but not
legal custody of the child, even though the mother herself would be
precluded from bringing a URESA petition on the child's behalf. 99
A private organization is not expressly included as a proper
URESA plaintiff. It has been suggested, however, that a theory of
recovery could be made out by the private agency or person based
on common-law remedies of restitution and subrogation. loo Subrogation would not be available on a theory that the agency had discharged a debt of the obligor; child support is not a debt. lol In
Texas, restitution would be possible if the agency's payment were
coupled with an express or implied assignment by the obligee of
the obligee's claim against the defaulting parent. I02 Then the
97. County of Clearwater v. Petrash, 598 P.2d 138, 140 (Colo. 1979) (en banc); Robinson v. Harris, 87 Mich. App. 69, _, 273 N.W.2d 108, 109 (1979); County of San Diego v ..
Elavsky, 58 Ohio St. 2d 81, _, 388 N.E.2d 1229, 1233 (1979); Gaidos v. Gaidos, 48 Wash. 2d
276, _ , 293 P.2d 388, 390 (1956).
98. See Maine v. Horton, 99 Mich. App. 90, 297 N.W.2d 622 (1980); Robinson v. Harris, 87 Mich. App. 69, _, 273 N.W.2d 108, 109 (1979). Modifications of original support
obligations in separate proceedings in which the state was not a party do not affect its rights
based on the original support obligation. Maine v. Horton, 99 Mich. App. 90, 297 N.W.2d
622 (1980); County of San Diego v. Elavsky, 58 Ohio St. 2d 81, _, 388 N.E.2d 1229, 1233
(1979).
99. See commentary to § 21.27 infra.
100. BROCKELBANK, supra note I, at 37.
101. Ex parte Holloway, 490 S.W.2d 624, 628 (Tex. Ciy. App.-Dallas 1973, no writ).
102. See Forney v. Jorrie, 511 S.W.2d 379 (Tex. Civ. App.-San Antonio 1974, writ
rerd n.r.e.). See also TEx. HUM. RES. CODE ANN. § 46.003 (Vernon 1980) (filing application
for public assistance constitutes an assignment of rights to collect support).
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agency would have the right to sue as the successor to the obligee's
rights under URESA.
Another possibility is suggested by the well-settled Texas rule
that a person supplying necessities to minor children may sue and
recover from the children's father the value of such supplies and
services in an ordinary action for debt. loa That the person who has
supplied necessaries may use the URESA remedy has been suggested by cases which have noted that the Act's remedies are intended to be supplementary and not exclusive of other available
remedies. 104 Apparently the Commissioners wanted to exclude
agencies or relatives whose aid was in the nature of a gift. Under
Texas law, a cause of action is not available in the case of a voluntary gift. 1011
§ 21.23. How Duties of Support are Enforced
All duties of support, including arrearages, are enforceable by a suit under this chapter, irrespective of the
relationship between the obligor and the obligee.
Commentary
Arrearages. The "including arrearages" language is intended
to respond to a tendency to use URESA only for recovery of current support.106 URESA is available to enforce prior orders from
another state, even if those orders are subject to modification. 107
Hence, a URESA petitioner who is able to establish a sum certain
due under a prior order is entitled to a judgment ordering payment
of the amount due in the URESA ~roceeding.108 Moreover,
103. Lawrence v. Cox, 464 S.W.2d 674, 675 (Tex. Civ. App.-Waco 1971, no writ);
Dilger v. Dilger, 271 S.W.2d 169, 170 (Tex. Civ. App.-Amarillo 1951, no writ).
104. See, e.g., County of San Diego v. Elavsky, 58 Ohio St. 2d 81, _, 388 N.E.2d
1229, 1232 (1979).
105. Boyle v. Tully, 134 S.W.2d 500, 501 (Tex. Civ. App.-Galveston 1939, writ refd).
106. BROCKELBANK, supra note 1, at 39.
107. 'rEx FAN. CODE ANN. § 21.03(6) (Vernon Supp. 1982).
108. See In re Solomon, 546 S.W.2d 129 (Tex. Civ. App.-Texarkana 1977, writ refd
n.r.e.). See also People ex rel. Kerl v. Kerl, 75 lli. App. 347,393 N.E.2d 1305 (1979).
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URESA may be used as a means of having the responding state
find a past-due enforceable obligation in the absence of a prior
court determination. loe
A claim for arrearages based on another state's order is vested
by the registration procedure of URESA, which mandates that
confirmed support orders are to be treated as if they had been
originally entered in a court of this state. 110 In this situation, the
choice-of-Iaw provision of section 21.21 is inapplicable. There can
be no choice-of-Iaw problem, regardless of the presence of the obligor in Texas, because the URESA decree merely recognizes the
other state's decree on principles of comity.l11
A problem may be perceived in the responding court's ordering of arrearages when no prior order concerning support has been
rendered. For example, suppose H and W were divorced in Illinois
in March 1975 but the decree contained no provision for child support. Suppose further that H moved to Texas in December of 1978.
If W initiates a URESA proceeding in Illinois, claiming liability for
arrearages from March 1975, the Texas law applies in determining
the obligation to support from December 1978, when H became a
resident of Texas. But does the Texas court have jurisdiction to
determine the duty of support for the initial period of residence in
Illinois from March 1975 to December 1978, and if so, is it Illinois
or Texas law that determines the duty? On its face, the Act limits
the time for which past support may be sought to the period during which the provider is present in the state.
An argument could be made that the Texas court, if it wished,
could impose a duty of support not only for the period from December 1978 to date (the period of Texas residence) but also from
March 1975 to December 1978 (the period of Illinois residence).
The applicable duties of support are those imposed or imposable
by the law of any state where the obligor was present during the
period for which support is sought. Moreover, section 21.23 speaks
109. The court may order the noncustodial parent to reimburse the custodial parent
for past expenditures made for the benefit of the child. See TEx. F AM. CODE ANN. § 21.37
(Vernon 1975); commentary to § 21.37 infra.
110. TEx. FAM. CODE ANN. § 21.66 (Vernon 1975). See Schlect v. Schlect, 387 A.2d 575
(D.C. 1978). See also Sampson Supp., supra note 10, at 182, 244-45.
111. Fox, supra note 13, at 130-31.
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in terms of all duties of support. Therefore, the Texas court could
apply the Illinois law to find a duty of support for the period of
Illinois residence as well. The full faith and credit clause applies to
foreign judgments, not foreign statutes. Texas could enforce the
right to support during the earlier period of residence in Illinois on
principles of comity if it found that enforcement would not violate
a public policy of this state. 111
Relationship to the obligor. The language that the duty of
support is enforceable "irrespective of the relationship between the
obligor and obligee" is intended to overturn the old common-law
rule that spouses, children, and parents could not sue each
other.us Before adoption of the new Code, this section would have
provided a remedy not otherwise available under Texas law. Under
the prior law, suits for support of children could be brought only
by parents. 1l4 Under section 11.03 of the Code, a suit in which support of a child is sought may be brought by "any person with an
interest in the child, including the child . . . , any agency of the
state or of a political subdivision of the state, and any authorized
agency."ll1l
§ 21.24. Jurisdiction
Jurisdiction of all proceedings hereunder is vested in
the district court and in any other court authorized to order support for children.
Commentary
The 1981 amendment U6 to this section dropped a second sen112. The Texas courts have reflected a tendency, however, to limit their jurisdiction to
consideration of questions of future support and to view the foreign court's order as dispositive of the question of past obligations. See O'Halloran v. O'Halloran, 580 S.W.2d 870 (Tex.
Civ. App.-Texarkana 1979, no writ); Holmes v. Tibbs, 542 S.W.2d 487 (Tex. Civ.
App.-Corpus Christi 1976, no writ).
113. BROCKELBANK, supra note I, at 38.
114. Smith, supra note 38, at 394.
115. TEx. FAM. CODE ANN. § 11.03 (Vernon 1975).
116. 1981 Tex. Sess. Law Serv., ch. 356, § 4, at 945 (Vernon).
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tence which read: "If the child for whom support is sought is the
subject of a suit affecting the parent-child relationship, the court
having continuing jurisdiction under Section 11.05 of this code has
exclusive jurisdiction of a suit under this chapter. "117 An inconsistency with section 21.42 was thereby eliminated. Section 21.42 provides that a URESA proceeding will not be stayed because of "a
pending suit for divorce, separation, annulment, dissolution,
habeas corpus, [or] custody proceeding . . . ," which in some cases
could affect the parent-child relationship.1l8 As a result, a URESA
action in which Texas is either the initiating or responding state
need not be transferred or stayed when a SAPeR is pending in
another court of this state.l19 Presumably, successive URESA proceedings are also allowed, subject only to the limitation that personal jurisdiction of the obligor may be obtained when Texas is the
responding state or that venue is proper when Texas is the initiating state. 120
The 1981 amendment added the phrase "and in any other
court authorized to order support for children. "121 Presumably this
includes any legislative court with jurisdiction equivalent. to that of
the district court. 122 It should be noted that federal law gives jurisdiction to the United States district court to entertain a suit by a
state on a child support claim, without regard to the amount in
controversy if the Secretary of Health and Human Services certifies that a state court has not sought enforcement within a "reasonable time, and . . . utilization of the Federal courts is the only
117. 1973 Tex. Gen. Laws, ch. 543, § I, at 1436.
118. TEx. FAM. CODE ANN. § 21.42 (Vernon Supp. 1982).
119. In re Miller, 583 S.W.2d 872 (Tex. Civ. App.-Dallas 1979, no writ) (the result in
Miller is legislatively abrogated by 1981 amendments to chapter 21).
120. The Act contains no express limitation on subsequent URESA petitions but an
action could be barred by res judicata. See, e.g., People ex rei. Kerl v. Kerl, 75 Ill. App. 3d
347,393 N.E.2d 1305 (1979) (obligation offuture support terminated by prior order); Howard v. Brizendine, 546 S.W.2d 136 (Tex. Civ. App.-Beaumont 1977, no writ) (support
arrearage) .
A new URESA order is justifiable if based on an independent, contemporary assessment of the circumstances. See Pace v. Pace, 222 Va. 524, _, 281 S.E.2d 891, 894 n.2
(1981).
121. 1981 Tex. Sess. Law Serv., ch. 356, § 4, at 945 (Vernon).
122. See Pelej v. Winans, 422 S.W.2d 152 (Tex. 1968).
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reasonable method of enforcing [the support] order .
. "123 This
authority is of limited practical importance,124 but other provisions
of the federal law concerning the federal parent locator service121i
and collection of support by the IRS126 are significant.
Although the district court is a court of general jurisdiction,
because URESA proceedings are purely statutory, the court's jurisdiction is circumscribed by the provisions of the Act that confer
jurisdiction to determine support and effectively limit the court's
jurisdiction. 127
§ 21.25. Petition for Support
The petition shall be verified and shall state the
name and, so far as known to the plaintiff, the address
and circumstances of the defendant and his dependents
for whom support is sought and all other pertinent information. The plaintiff shall attach to the petition a certified copy of the court order, decree, or judgment of support sought to be enforced, whether interlocutory or
final, if any. The plaintiff may include in or attach to the
petition any information which may help in locating or
identifying the defendant, such as a photograph of the
defendant, a description of any distinguishing marks of
his person, other names and aliases by which he has
been or is known, the name of his employer, his fingerprints, or Social Security number.
Commentary
The second sentence in this section was added in 1981 to make
a court order an essential part of a URESA petition that seeks en123. 42 U.S.C. § 652(a)(8) (1976).
124. Fox, supra note 13, at 122-23.
125. 42 U.S.C. § 653 (1976 & Supp. III 1979).
126. [d. § 652b (1976); 26 U.S.C. § 6305 (1976 & Supp. III 1979). For a discussion of
these statutes, see Comment, supra note 37, at 636.
127. See commentary to § 21.44 infra.
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for cement of the prior order. u8 In addition, it is mandatory under
this section that the petition be verified and that it state the following: (1) The names of the defendant obligor and the dependents for whom support is sought; (2) to the extent known, addresses and circumstances of the defendant and those dependents;
and (3) all other pertinent information. Moreover, under section
21.28, as a condition of certification, the petition must set forth
sufficient facts from which the certifying, initiating court may determine that the obligor both has a probable duty of support and
is subject to in personam jurisdiction in the responding state. The
permissive language in the last sentence of the section is intended
to encourage inclusion in the petition of as much information as
possible to help locate the obligor. 129 Blank petition forms are
available in most jurisdictions. 13o
The adequacy of the petition is technically subject to scrutiny
by both the initiating and responding states' courts. The court of
the initiating state could determine that it provides an inadequate
basis for certification under section 21.28,131 but even after certification and forwarding from the initiating state, the court of the
responding state may determine the adequacy of the petition to
state a claim for relief under the law of the responding state. 132
The petition should not be given a technical reading in light of
the Act's statement that it "shall be so interpreted and construed
as to effectuate its general purpose and to make uniform the law of
those states which enact it."!33 The technical rules of pleading and
practice are of little importance in matters concerning the support
and custody of children where the paramount concern is the best
interest of the child. 134
Decisions may be found, however, that have imposed rigorous
128. 1981 Tex. Sess. Law Serv., ch. 356, § 5, at 945-46 (Vernon).
129. Fox, supra note 13, at 118.
130. [d. For a sample petition form, see BROCKELBANK, supra note 1, at 186 app. VII.
131. TEx. F AM. CODE ANN. § 21.28 (Vernon Supp. 1982); commentary to § 21.28 infra.
132. BROCKELBANK, supra note 1, at 42.
133. TEx. FAM. CODE ANN. § 21.06 (Vernon 1975). See Kirby v. Kirby, 338 Mass. 263,
155 N.E.2d 165 (1959) (typographical errors).
134. Poulter v. Poulter, 565 S.W.2d 107, III (Tex. Civ. App.-Tyler 1978, no writ)
(citing Liethold v. Plass, 413 S.W.2d 698 (Tex. 1967)); see also Boriack v. Boriack, 541
S.W.2d 237, 242 (Tex. Civ. App.-Corpus Christi 1976, writ dism'd).
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requirements on the form of the petition. Failure to set out the law
of the initiating state where the law defined "court" to include
"court of any state having reciprocal laws" has been held to be a
jurisdictional defect, lSCI as has the failure to show a duty of support
in a state where a father after divorce may not be liable. 136 Failure
of a verified petition to allege the residence or domicile of the children for whom support was sought has been held to be
noncompliance. 137
A decision representing the high-water mark of scrutiny of the
URESA petition is Martin v. Coffey.138 There, quashing of a
URESA petition by a court of Michigan as the initiating state was
upheld because the petition failed to set out "other pertinent information," namely, a court-approved agreement that had purportedly terminated the duty of support.139 A Texas court to which the
petition was certified, applying its own law as the responding state,
might have given effect to the settlement order, but it could also
properly have concluded otherwise and made a new determination
of support.140 The Michigan appellate court was at pains to· point
out, however, that it was not ruling on the ultimate substantive
issue of the defendant's duty to support because it obviously appreciated that for a court of the initiating state to do so would
violate URESA. Instead, its affirmance of the quashing of the petition was without prejudice to refiling another "fully setting out the
pertinent information."Hl The court's ruling does leave open the
possibility that the trial court could decline to certify the new petition even if it were technically proper.142
135. Manis v. Genest, 210 Ga. 16, 77 S.E.2d 525 (1953).
[d. at _, 77 S.E.2d at 528.
137. Thibadeau v. Thibadeau, 133 Ga. App. 154, _, 210 S.E.2d 340, 342 (1974); Kirby
v. Kirby, 338 Mass. 263, 155 N.E.2d 165 (1959).
138. 83 Mich. App. 113, 268 N.W.2d 307 (1978).
139. [d. at _, 268 N.W.2d at 309.
140. [d. As suggested by the dissenting opinion, the Texas court could have found,
although it was unlikely to do 80, that the private agreement was unenforceable as not in
the best interest of the child. [d. at _, 268 N.W.2d at 310; see TEx. FAM. CODE ANN. §
14.06(b) (Vernon 1975).
141. 83 Mich. App. at _,268 N.W.2d at 309.
142. See TEx. FAM. CODE ANN. § 21.28 (Vernon Supp. 1982); commentary to § 21.28
infra.
136.
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§21.26 TEXAS TECH FAMILY SYMPOSIUM [Vol. 13:1025
§ 21.26. Representation of Plaintitl'
The prosecuting attorney, upon the request of the
court or the Texas Department of Human Resources,
shall represent the plaintitl' in any proceeding under this
chapter.
Commentary
Implicit in this section is the large role that public agencies
play in the decision to seek the URESA remedy. It is unlikely that
a destitute individual on welfare will unilaterally decide to file a
URESA petition, and it may be even less likely that he will seek
the services of a private attorney.143 This section imposes a duty on
the prosecuting attorney to represent the URESA plaintiff in the
initiating state at the request of either the Department of Human
Resources or the court. 14. It is obvious that the Department itself
may be responsible in many cases for suggesting the URESA remedy and may provide assistance to the obligee.
Notwithstanding the lack of an express limitation in section
21.26 to cases of indigency, all the prosecuting attorney presumably
would not be asked to acP·s nor would he be constitutionally required to act in other than indigent cases. 1• 7 The URESA plaintiff
would not be precluded, of course, from employing and proceeding
through private counsel. 148
As a practical matter, the need for vigorous representation, at
least initially, is most acute in the responding state. Certification
of the URESA petition by the court in the initiating state to the
court of the responding state tends to be little more than a pro
143. See BROCKELBANK, supra note I, at 42.
144. See TEx. FAM. CODE ANN. §§ 21.32(b), 21.33 (Vernon 1975) (imposing on the
prosecuting attorney the duty of prosecuting the petition in the responding state).
145. Some state statutes contain express limitations. See, e.g., GA. CODE § 99-911a
. (1981) (applicant or recipient of public assistance or dependent child); HAWAII REV. STAT. §
576-25 (1976) (unable to hire private counsel).
146. BROCKELBANK, supra note I, at 47.
147. Boddie v. Connecticut, 401 U.s. 371, 380-81 (1971).
148. See Rivera v. Rivera, 5 Misc. 2d 362, 160 N.Y.S.2d 171 (1957).
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forma exercise. Only if the URESA action is contested at the responding end will the URESA petitioner have a serious need for an
attorney's services.
1 21.27. Minor Petitioner
A petitioner on behalf of a minor obligee may be
brought by a person having legal custody of the minor
without appointment as guardian ad litem.
Commentary
In a time in which child snatching is a common event, it
should be noted that a URESA action on behalf of a minor child
can be brought only by a person with "legal custody" or, in the
Texas parlance, by the managing conservator. H9 Hence, a petitioner-obligee who has removed a child in violation of a decree
awarding custody to another cannot bring the URESA action on
the minor child's behalf.160 On the other hand, a mother who has
legal custody or who has not been deprived of custody by court
order may bring the action even if she takes the children out of the
home or leaves the state of common domicile.161
Appointment of a guardian ad litem is abandoned by this section as being a mere formality in cases in which the parent having
legal custody brings the action. UI2 By its terms, the section is permissive; it allows a suit by the custodial parent on the minor's behalf but does not require it.
Maya child file a petition on his own behalr? Before adoption
of Texas Family Code section 11.03, Texas courts had held that a
149. See TEx. FAM. CODE ANN. §§ 14.01-.02 (Vernon 1975 & Supp. 1982). Substitution
of the term "managing conservator" for "custodian" is a cosmetic label of dubious value.
Because it is unique to Texas, attorneys should be aware that in the interstate context it
may need explaining.
150. Hethcox v. Hethcox, 146 Ga. App. 430, _, 246 S.E.2d 444, 445 (1978) (notwithstanding express statutory requirement that custody be "legal"); New Jersey v. Morales, 35
Ohio App. 2d 56, _, 299 N.E.2d 920, 924 (1973).
151. See commentary to § 21.05.
152. Fox, supra note 13, at 119.
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child could not maintain a suit for support on his own behalf
against a parent. IllS Section 11.03, however, provides that "a suit
affecting the parent-child relationship [which includes a suit 'in
which ... support of a child ... is soughf U4 ] may be brought by
any person with an interest in the child, including the child
(through a representative authorized by the court)."m
A URESA petition by the child would be appropriate in situations in which the child is not living with the defendant-obligor
and the custodial parent for whatever reason refuses to act to enforce the support obligation. In effect, a public agency suing on the
child's behalf assumes the role of the reluctant parent and becomes
the child's alter ego in a URESA action.
It should be clear that under the United States Supreme
Court's decision in Gomez v. Perez,1II6 the term "minor obligee"
must constitutionally be interpreted to include an illegitimate
child of the obligor.
§ 21.28. Court of This State as Initiating State
If the court of this state acting as an initiating state
finds that the petition sets forth facts from which it may
be determined that the defendant owes a duty of support
and that a court of the responding state may obtain jurisdiction of the defendant or his property, it shall so certify and shall cause three copies of the petition, its certificate, and this chapter to be transmitted to the court in
the responding state. If the name· and address of such
153. Gard v. Gard, 239 S.W.2d 410 (Tex. Civ. App.-EI Paso), rev'd on other grounds,
150 Tex. 347, 241 S.W.2d 618 (I951); see Smith, supra note 38, at 394-95.
154. TEx. FAM. CODE ANN. § 11.01(5) (Vernon 1975).
155. Id. § 11.03. See Charvis v. Charvis, 529 S.W.2d 814 (Tex. Civ. App.-Tyler 1975,
no writ). Although the provisions of subtitle A are not expressly applicable to subtitle B,
containing URESA (chapter 21), the Texas courts have consistently assumed their applicability when interpreting the reach of URESA. See, e.g., Etchison v. Greathouse, 596 S.W.2d
233 (Tex. Civ. App.-Houston [1st Dist.] 1980, no writ); Charvis v. Charvis, 529 S.W.2d 814
(Tex. Civ. App.-Tyler 1975, no writ).
156. 409 U.S. 535 (1973). See In re Miller, 605 S.W.2d 332 (Tex. Civ. App.-Fort
Worth 1980, writ granted).
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court is unknown and the responding state has an information agency comparable to that established in the initiating state, it shall cause such copies to be transmitted
to the state information agency or other proper official of
the responding state, with a request that it forward them
to the proper court, and that the court of the responding
state acknowledge their receipt to the court of the initiating state.
Commentary
Section 21.28 contemplates that the court of the initiating
state shall make a determination in the nature of an ex parte
probable cause finding that the petition sets forth sufficient facts
to allow it to be transmitted to a court in the responding state. 167
The language is inartful. There must be facts in the petition "from
which it may be determined [1] that the defendant owes a duty of
support and [2] that a court of the responding state may obtain
jurisdiction of the defendant or his property." A textual interpretation of the language suggests that the court must find the duty of
support as a fact and the ability of the responding state to obtain
jurisdiction only as a possibility. Nevertheless, the general view is
that although the initiating court performs more than a merely
ministerial function,168 its judicial function is limited to a determination of a probability of both a support obligation and the presence of the obligor or his property in the responding state's jurisdiction.159 This determination is akin to a finding of whether the
petition states a claim on which relief can be granted. ISO Some differences in perception over the precise scope and nature of the initiating court's function have arisen, which are attributable primarily to the differences of language in some state statutes. In New
York, for example, the statute requires the petition to allege that
157. Kirby v. Kirby, 338 Mass. 263, 155 N.E.2d 165 (1959); Fox, supra note 13, at 120.
158. Huffman v. Huffman, 93 Misc. 2d 790, 403 N.Y.S.2d 850 (Farn. Ct. 1978).
159. Prages v. Smith, 195 A.2d 257 (D.C. App. 1963); Pfueller v. Pfueller, 37 N.J.
Super. 106, 117 A.2d 30 (1955); Neff v. Johnson, 391 S.W.2d 760 (Tex. Civ. App.-Houston
1965, no writ).
. 160. Fox, supra note 13, at 120.
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the dependent "is in need of and is entitled to support from the
respondent," and the initiating court is directed to certify "that, in
his opinion, the respondent . . . should be dealt with according to
law."161 Thus, an initiating court in New York must determine
whether the petition makes out a prima facie case of both need
and entitlement. 162
The initiating court's duty in Texas has been stated as a finding of "such probable duty of support as to warrant transmittal of
the petition, certificate and a copy of the support act to the court
of the responding state."16S This determination is not an evidentiary finding of liability and leaves the determination of an actual
duty of support to the court of the responding state.
Section 21.03(14) mandates certification "in accordance with
the laws of the certifying state."164 This takes into account the existence of technical differences in the procedure by which the various states certify a URESA petition. The responding state is not
an appellate court for the court of the initiating state and must
respect the initiating court's determination. 1611
Section 21.28 is silent on what law is referred to in making the
determination of a probable duty of support. Perhaps by implication from the fact that the responding state's law is specifically
made applicable to the ultimate determination, the initiating
state's law should apply to the certification decision. Also, it is not
contemplated that the URESA petitioner should have to prove up
a foreign state's law to state a claim for relief.
The prevailing view apparently is that the sufficiency of the
petition for certification purposes-whether it states facts showing
a probable duty of support-is to be determined by reference to
the initiating state's law. 166 It has been suggested that the initiating court's function is merely to examine the verified petition to
161. N.Y. DOM. REL. LAW § 37(1), (3) (McKinney 1977).
162. Huffman v. Huffman, 93 Misc. 2d 790, 403 N.Y.S.2d 850 (Fam. Ct. 1978); Lascaris
v. Brunson, 92 Misc. 2d 776, 401 N.Y.S.2d 136 (Fam. Ct. 1977).
163. Neff v. Johnson, 391 S.W.2d 760, 764 (Tex. Civ. App.-Houston 1965, no writ).
164. TEx. FAM. CODE ANN. § 21.03(14) (Vernon 1975).
165. Huffman v. Huffman, 93 Misc. 2d 790, _, 403 N.Y.S.2d 850, 854 (Fam. Ct.
1978).
166. [d. at _, 403 N.Y.S.2d at 854. However, the review by the initiating state's court
has been characterized as "loose." Fox, supra note 13, at 120.
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determine whether it contains sufficient facts from which a duty of
support is capable of being determined, not whether in fact a probable duty of support exists. le7 Even if the initiating court's function is so limited, it must have a frame of reference. That reference
is its own law; it does not predict what the result would be in the
responding state. 188 Although there are differences, if there is a
probable duty of support in the initiating state, there likely will be
such a duty in the responding state.
It has been held that the proceedings are not invalidated by
the failure of the judge's certificate to name specifically a court of
the responding state l89 or by transmittal of the certified copies to
the "wrong court"-that is, a court within whose jurisdiction the
obligor neither resides nor has property.l70 The court that receives
the petition in the responding state may simply forward it to another court in the state that can obtain jurisdiction of the
obligor. l7l
§ 21.29. Costs
There shall be no filing fee or other costs taxable to
the obligee, but a court of this state, acting either as an
initiating or responding state, may in its discretion direct
that any part of or all fees and costs incurred in this
state, including without limitation by enumeration, fees
for filing, service of process, seizure of property, and
stenographic service of both plaintift' and defendant or
either, be paid by the obligor or the county.
167. O'Hara v. Floyd, 47 Ala. App. 619, _, 259 So. 2d 673, 675 (1972).
168. See Department of Mental Hygiene v. Judd, 45 N.J. 46, 211 A.2d 198 (1965), in
which the New Jersey court effectively ruled that the California petition should not have
been certified to New Jersey when there was no duty of a parent to support a mentally ill
child in California, even though such duty existed in New Jersey.
169. Manis v. Genest, 210 Ga. 16, _, 77 S.E.2d 525, 527 (1953).
170. Kirby v. Kirby, 338 Mass. 263, 155 N.E.2d 165 (1959) (statute requires only that
the papers be transmitted "to the court of the responding state").
171. TEx. FAM. CODE ANN. § 21.33 (Vernon 1975).
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Commentary
The apparent reason for this section is the wide divergence
from state to state of costs and fees and the difficulty of finding
that information in the initiating state. 172 The section expressly
speaks only to the authority of the Texas court when Texas is either the initiating or responding state. If the initiating state is
Texas, the Texas court may simply let the county absorb the costs
or request in its certification to the responding court in another
state that the costs be paid by the obligor. In the latter situation,
whether the costs incurred in Texas will be collected apparently is
left to the judgment of the responding state's court. When, on the
other hand, the responding state is Texas, this section expressly
permits the Texas court to include in its judgment a direction that
fees and costs incurred in this state be paid by the obligor. Although not specifically addressed in this section, the costs incurred
in the initiating state are not precluded from collection by the
Texas court on behalf of the initiating state. 178
By waiving a filing fee and payment of any other costs by the
obligee, this section implicitly recognizes that the obligee-petitioner in a URESA case often is destitute or nearly so. To impose
the cost requirement on an indigent URESA petitioner likely
would be unconstitutional. 174
No standard is provided by this section to guide the judge's
discretion in awarding costs against the obligor. The 1981 amendment to section 11.18(a) relating to SAPeR's reflects an intent
that costs in family law cases be awarded by reference to the rules
concerning necessaries, rather than the rules for costs in civil cases
generally.17!! Hence, a judgment for the URESA petitioner may in172. BROCKELBANK, supra note I, at 45.
173. RURESA, supra note 14, § 15 allows the responding state court to direct payment
of costs and fees incurred to the initiating state.
174. See Boddie v. Connecticut, 401 U.S. 371 (1971).
175. The 1981 amendment to section 11.18 deleted the phrase that called for costs to
be awarded "as in other civil cases," apparently removing the restriction of Reames v.
Reames, 604 S.W.2d 335, 337 (Tex. Civ. App.-Dallas 1980, no writ). In Reames the court
construed the "as in other civil cases" language to limit the award of attorneys' fees to the
"successful party" under rule 131, Texas Rules of Civil Procedure, except for "good cause"
under rule 141. Apparently the issue now is whether the fees were for necessary legal services for the benefit of the child. See Drexel v. McCutcheon, 604 S.W.2d 430, 433, 435 (Tex.
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clude recovery of costs against the obligor. On the other hand, if
the obligor successfully defends an action which is found not to
have been prosecuted in good faith and on reasonable grounds, the
effect of this section is to require that the costs be borne by the
county. This section is another example of the URESA policy of
encouraging suits for support even at the risk of inviting unwarranted or vexatious suits. The hope of URESA is that the certification procedure will sift out spurious claims before significant expenses are incurred.
§ 21.30. Jurisdiction by Arrest
When the court of this state, acting either as an initiating or responding state, has reason to believe that the
defendant may flee the jurisdiction, it may:
(1) as an initiating state, request in its certificate
that the court of the responding state obtain the
body of the defendant by appropriate process if that
be permissible under the law of the responding state;
or
(2) as a responding state, obtain the body of the
defendant by appropriate process.
Commentary
To aid in slowing down the obligor who is a moving target, the
Act provides that if the court of the initiating state has reason to
believe the respondent may flee the jurisdiction, it may request in
its certificate that the court of the responding state arrest him if
permitted under the responding state's law. It has been suggested
that such a request will serve at least to alert the responding
state's authorities to the elusiveness of the obligor. 176
Under Texas law, Texas authorities would have the power to
Civ. App.-Waco 1980, no writ). If so, the awarding of costs in suits affecting the parentchild relationship conforms to the procedure in dissolution cases. See commentary to § 3.65
supra.
176. BROCKELBANK, supra note" 1, at 45.
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arrest an obligor for the criminal offense of nonsupport177 if the
verified petition established probable cause of a violation. 178
§ 21.31. State Information Agency
The Texas Department of Human Resouces is the.
state information agency under this chapter, and it shall:
(1) compile a list of th'e courts and their addresses in this state having jurisdiction under this
chapter and transmit the same to the state information agency of every other state which has adopted
this chapter or a substantially similar act; and
(2) maintain a register of such lists received
from other states and transmit copies thereof as
soon as possible after receipt to every court in this
state having jurisdiction under this chapter.
Commentary
To aid dependents in prosecuting URESA claims, the Act establishes the Texas Department of Human Resources as a repository of useful information. This section requires the state information Agency to compile a list of courts having jurisdiction of
URESA actions and their addresses for transmission to other
states with reciprocal support legislation. In addition, the Agency
is to maintain a register of similar lists received from other states.
The Council of State Governments acts as a national clearinghouse
for the data required under this section and other basic information, which it publishes in a manua}.179 The address of the council
is 1155 East 60th Street, Chicago, Illinois 60637.
177. TEX. PENAL CODE ANN. § 25.05 (Vernon 1974).
178. A warrant of arrest could be issued for the misdemeanor offense of nonsupport on
the basis of the verified petition, which would suffice as a complaint. TEx. CODE CRIM. PRO.
ANN. art. 15.05 (Vernon 1977).
179. COUNCIL OF STATE GOVERNMENTS, RECIPROCAL STATE LEGISLATION TO ENFORCE THE
SUPPORT OF DEFENDANTS (1964).
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§ 21.32. Duty of State as Responding State
(a) After the court of this state, acting as a responding state, has received from the court of the initiating
state the aforesaid copies, the clerk of the court shall
docket the case and notify the district judge or the judge
of the domestic relations court, or both judges, of his
action.
(b) It shall be the duty of the prosecuting attorney
diligently to prosecute the case. He shall take all action
necessary in accordance with the laws of this state to
give the court jurisdiction of the defendant or his property and shall request the clerk of the court to set a time
and place for a hearing.
Commentary
The respective duties of the prosecuting attorney and the
court in the responding state are unequivocal: it is mandatory that
the court receiving the required number of copies of the certified
petition docket the case and that the prosecuting attorney diligently prosecute the action by taking all necessary steps to obtain
jurisdiction of the obligor and to get the case set for a hearing.
Despite this, prosecution of URESA actions are notoriously erratic
and halfhearted. 180 This should not be surprising. The primary
function of prosecuting attorneys is to prosecute criminal offenders; the statutes defining that duty are likewise stated in
mandatory terms. Nevertheless, discretion to pick and choose
which cases will be prosecuted is generally accepted as residing in
the prosecutor because of the overworked justification of excessive
workloads and crowded dockets. In that context, URESA cases are
often afforded the same low priority reserved for less serious criminal cases. 181
The alternatives for the URESA petitioner confronted with an
unenthusiastic prosecutorial response in the responding state are
180. Fox, supra note 13, at 124; Comment, supra note 37, at 630 & n.43.
181. See Gifford, Equal Protection and the Prosecutor's Charging Decision: Enforcing
an Ideal, 49 GEO. WASH. L. REV. 659, 667 (1981).
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discouraging. Federal court access is more illusory than real. lSI
Employment of private counsel in the responding state is a possibility, but may in many cases be financially impracticable. l8S Perhaps the best practical remedy is to enlist the aid of the state welfare agency in the responding state, which is likely to have a.
working relationship with the prosecuting attorney's office and the
court. The local agency may be expected to have an interest in seeing that claims from another state are enforced so that its claims in
cases forwarded to the state of the petitioner will receive like attention. Of all the functionaries in the URESA process, the welfare
182. The 1975 child support provisions of the federal law which became part of the
Social Security Act, 42 u.s.c. §§ 651-660, 1397-1397f (1976), provide federal remedies for
the enforcement of child support claims against parents. In addition to the federal parent
locator service, discussed in note 186 infra, the federal law provides for:
1) creation of a unit in HEW for technical assistance to states in the collection of
child support and financial aid to states to further efforts in reducing dependency;
2) standards for child support plans, including a requirement of an acceptable
program of cooperation with other states in obtaining support from the absent
parent of a child receiving welfare payments as a condition of receiving full federal
matching funds;
3) exclusion of debts owed to the state for child support from discharge in bankruptcy and authorization to the states to use the federal income tax mechanism to
collect support payments on behalf of welfare recipients;
4) garnishment of wages of United States employees for payment of child support
and alimony; and
5) jurisdiction to the United States district courts over claims for child support on
certain conditions.
See id.
Internal Revenue Service collection procedures must be preceded by diligent and reasonable but unsuccessful efforts by the state to collect court-ordered payments. The IRS
must give a one-time, 60-day notice to the defaulting parent of its intent to enforce payments under the IRS mechanism. The authority to use this procedure is subject to certification by the Secretary of the Department of Health and Human Services.
The provision for use of the federal courts grew out of concern over the lack of cooperation between states in enforcing child support orders. Galvin, The Runaway Parents, TRIAL,
Apr. 1976, at 20, 26. If a state to which a nonpaying parent has fled is uncooperative, the
originating state may file a complaint with the Secretary, who may authorize access to the
federal courts to aid in enforcement of the order. The federal court has jurisdiction without
regard to the amount in controversy. The overcrowded federal dockets and the stringency of
the Department's certification limit the utility of this provision. Fox, supra note 13, at 12223; Comment, supra note 37, at 636 & n.l02 (1976); Note, 52 WASH. L. REV. 169,187 (1976).
183. See TEX. FAM. CODE ANN. § 21.39 (Vernon Supp. 1982). Dismissal of a URESA
action because private counsel was retained has been held improper. Ball v. Haughton, 60
Ill. App. 3d 562, 377 N.E.2d 78 (1978).
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agencies would appear to have the greatest interest in truly reciprocal enforcement under the Act. 18•
§ 21.33. Duty of Prosecuting Attorney in Responding
State
(a) The prosecuting attorney shall, on his own initiative, use all means at his disposal to trace the defendant
or his property and if, due to inaccuracies of the petition
or otherwise, the court cannot obtain jurisdiction, the
prosecuting attorney shall inform the court of what he
has done and request the court to continue the case
pending receipt of more accurate information or an
amended petition from the court in the initiating state.
(b) If the defendant or his property is not found in
the judicial district and the prosecuting attorney discovers by any means that the defendant or his property may
be found in another judicial district of this state or in another state, he shall so inform the court; and thereupon
the clerk of the court shall forward the documents received from the court in the initiating state to a court in
the other judicial district or to a court in the other state
or to the information agency or other proper official of
the other state with a request that it forward the docu184. There is a tendency for any specialized agency charged with the responsibility of
administering a particular program to become a so-called "clientele" agency, which perceives itself as serving the interests of a particular group. See M. SHAPIRO, THE SUPREME
COURT AND ADMINISTRATIVE AGENCIES 55-57 (1968). Because the state welfare agency has
closely identifiable interests with mothers who are welfare recipients, the agency could become a more active advocate in enforcing payment of child support on behalf of welfare
recipients than nonwelfare recipients. A glaring example was the state agency's policy of
providing enforcement assistance only to welfare recipients that was struck down in Carter
v. Morrow,8 FAM. L. REP. (BNA) 2124 (W.D.N.C. Nov. 30, 1981). The agency's interest in
recouping benefits paid to welfare recipients does not alter its responsibility to provide assistance, including prosecution of URESA actions, to persons not receiving child support
services. TEx. HUM. RES. CODE ANN. § 46.004 (Vernon 1980); TEx. ATT'v GEN. OP. No. H1004 (1977) (concluding that a reasonable application fee may be charged to nonwelfare
recipients). The degree of diligence to be expected from the local agency in assisting the
nonwelfare recipient will likely vary, however, depending on the locality.
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ments to the proper court. Thereupon, both the court of
the judicial district and any court of this state receiving
the documents and the prosecuting attorney have the
same powers and duties under this chapter as if the documents had been originally addressed to them. When the
clerk of a court of this state retransmits documents to
another court, he shall notify forthwith the court from
which the documents came.
(c) If the prosecuting attorney has no information as
to the whereabouts of the obligor or his property he
shall so inform the initiating court.
Commentary
The duties of the prosecuting attorney from sections 21.32 and
21.33 may be summarized as follows: (1) To use all means at his
disposal to get jurisdiction of the defendant or his property; (2) to
inform the court of what he has done and to request a continuance
to obtain more information or an amended petition if he cannot
obtain jurisdiction; (3) to inform the court if efforts to obtain jurisdiction fail but the obligor may be found in another county (the
court is then required to transmit the documents directly to the
court that may obtain jurisdiction or to the information agency or
other proper official); (4) to request the clerk of the court to set a
time and place for hearing; and (5) to prosecute the case diligently.
The court may obtain jurisdiction of the obligor by either personal service or citation by registered or certified mail, return receipt requested. 186 Available to assist the prosecuting attorney in
obtaining jurisdiction is an extensive parent locator service. 18S
185. TEx. FAM. CODE ANN. § 11.09(c)(i) (Vernon Supp. 1982).
186. 42 U.S.C. § 653 (1976) requires all states to establish a state parent locator service as a condition of continued federal funding. See TEx. HUM. RES. CODE ANN. § 46.001
(Vernon 1980). After local and state efforts have been exhausted, the state parent locator
service (PLS), from which all requests to utilize the federal PLS must originate, may submit
requests to the federal PLS from (1) the agent or attorney who has the authority under the
state plan for child support enforcement to recover any amounts owed for child support; (2)
the court with authority to issue a support order against an absent parent for support and
maintenance of a child; or (3) the resident parent, legal guardian, attorney, or agent of a
child. Private persons not eligible to receive welfare benefits must pay a reimbursement fee
for the service, but no charge is made on out-of-state requests. See Texas Department of
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This section requires that the prosecuting attorney trace the
obligor's property if he cannot trace the obligor himself. In rem
jurisdiction by attachment of the obligor's property is possible
under Texas law. 187
1 21.34. Continuation of the Case
If the plaintiff is absent from the responding state
and the defendant presents evidence which constitut-es a
defense, the court shall continue the case for further
hearing and the submission of evidence by both parties.
Commentary
It has been noted that URESA actions are infrequently contested,188 but when they are, two knotty problems arise: (1) What
evidence constitutes a defense? (2) If such evidence is presented
and a continuance for further hearing is required, how is evidence
from the petitioner to be obtained?
Defenses
As a general proposition, the courts have interpreted the subject matter jurisdiction of a URESA proceeding as being limited to
the narrow question of the support duty.18B Thus, attempts to raise
and litigate collateral matters such as the validity of a divorce or
child custody decree have usually been unsuccessful. Matters relating directly to the duty of support, however, may be permitted.
The language of this section referring to "evidence which constitutes a defense" will likely not be given a literal reading and will
not limit evidence by the alleged obligor to that which constitutes
a technical defense. 19o It will include not only evidence that tends
Human Resources, Child Support Handbook, items 3100-3300 (Oct. 1978), items 3400-3600
(Nov. 1975).
187. TEx. R. CIV. P. 592 (Vernon Supp. 1982).
188. Fox, supra note 13, at 129.
189. See generally Note, supra note 2, at 415-20.
190. Fox, supra note 13, at 125.
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to establish that no duty is owed, but if a duty is found, evidence
relative to the extent of that duty as well. lei
The respondent-obligor can attempt to interpose one of several defenses to his duty to support in the URESA action. When
the action is based on a foreign support order, he may, of course,
attack the validity of the foreign decree.19lI But in addition, he may
raise other defenses, most commonly denial of visitation rights,
lack of paternity, or running of the statute of limitations.
Visitation
Section 23 of the 1968 version of URESA provides that "[t]he
determination . . . of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitation granted by a court."le8 It thus conforms to the
approach of most courts under the earlier version of the Act,
which, as in the Texas law, makes no specific reference to visitation. Unless the duty of support has been terminated by the original divorce for failure to afford visitation privileges l94 or the support order is expressly conditioned on visitation privileges,le6 the
courts almost uniformly reject a loss-of-visitation defense. I" Moreover, because a duty of support may be found in a URESA action
independently of the original order, even violation of a contingent
order of support has been held no bar to entry of a URESA support order.
In Texas, denial of visitation rights is not a defense to any
action for child support. l97 The interest of the child is viewed as
191. See, e.g., Holmes v. Tibbs, 542 S.W.2d 487 (Tex. Civ. App.-Corpus Christi 1976,
no writ).
192. See TEx. FAM. CODE ANN. § 21.65 (Vernon 1975); O'Halloran v. O'Halloran, 580
S.W.2d 870 (Tex. Civ. App.-Texarkana 1979, no writ).
193. RURESA, supra note 14, § 23.
194. See, e.g., State ex rei. Arvayo v. Guerrero, 21 Ariz. App. 173,517 P.2d 526 (1974);
Cochran v. Cochran, 263 So. 2d 292 (Fla. Dist. Ct. App. 1972).
195. See, e.g., Porter v. Porter, 25 Ohio St. 123, 267 N.E.2d 299 (1971).
196. See generally Annot., 95 A.L.R.2d 118 (1964).
197. Felker v. Felker, 216 S.W.2d 669 (Tex. Civ. App.-Dallas 1948, writ ref'd n.r.e.);
Gunn v. Johns, 153 S.W.2d 709 (Tex. Civ. App.-Dallas 1941, writ dism'd). See also Almanza v. State, 365 S.W.2d 360 (Tex. Crim. App. 1963) (duty to support under criminal
statutes not affected by disagreement with mother over custody).
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best served by having both visitation by the noncustodial parent
and adequate support. 198 Accordingly, attempts to make one right
conditional on the other are not permitted. A contract purporting
to make support payments contingent on visitation privileges has
been held unenforceable as contrary to public policy;199 forfeiture
of visitation privileges because of nonpayment of support is
equally impermissible. 20o Moreover, no estoppel of a child support
action was found in Houtchens v. Matthews,201 in which a mother
was alleged to have made a statement that if the husband did not
pay child support, he could not see the children.
Nonpaternity
The defense of nonpaternity has proved so troublesome that
the 1968 version of URESA expressly addresses the issue. Under
section 27 of RURESA, when a bona fide claim of nonpaternity is
raised, the court may adjudicate the issue but only if both parties
are present at the hearing or the court determines that the presence of both parties is not required. Otherwise, the court may adjourn the hearing until paternity has been adjudicated elsewhere.
When this occurs, the interstate petitioner is apparently left to
find a court with subject-matter and personal jurisdiction in which
to bring a paternity action, either in the state in which the URESA
action was originally initiated or in the responding state. 201
In those states, such as Texas, that have not adopted the 1968
version of URESA, the Act has no express provision for the determination of paternity in a proceeding for support under the Act.
Thus, an issue in Texas is whether the pre-1968 version implicitly
authorizes a determination of paternity, a question that has divided courts in other jurisdictions.
Paternity is a necessary element of a URESA action based on
a putative father's obligation to support a child. loa Most courts in
198. Gani v. Gani, 500 S.W.2d 254 (Tex. Civ. App.-Texarkana 1973, no writ).
199. Thurman v. Fatherree, 325 S.W.2d 183, 186 (Tex. Civ. App.-San Antonio 1959,
writ dism'd).
200. Gani v. Gani, 500 S.W.2d 254 (Tex. Civ. App.-Texarkana 1973, no writ).
201. 557 S.W.2d 581, 586 (Tex. Civ. App.-Fort Worth 1977, writ dism'd).
202. See Bartlett v. Superior Court, 86 Cal. App. 3d 72, 150 Cal. Rptr. 25 (1978).
203. TEX. FAM. CODE ANN. § 11.01(3) (Vernon 1975) defines a man as a "parent" if he
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responding states under URESA have found that a paternity determination is implicitly authorized in a child support proceeding
under a version of URESA without an express provision for paternity determinations.lI04 Several courts have held, however, that the
responding state had no jurisdiction to determine a disputed issue
of paternity.lIoo The effect of these latter holdings is to relegate the
obligee to the separate statutory procedure for determination of
paternity in either the initiating or the responding state.
Although not directly addressing the issue, at least one Texas
case, Etchison v. Greathouse,lIos suggests that a Texas court has
jurisdiction to determine paternity or a claim of nonpaternity by
the obligor. In Etchison respondent testified that he was married
to and living with the petitioner through January 1964 and was not
divorced from petitioner until 1969; the child for whom support
was sought was born September 19, 1964. Since respondent was
unable to present evidence of nonaccess or impotency, he was unable to overcome the strong presumption of legitimacy in Texas
law.lI07
In the case of an unwed mother seeking support for a child
alleged to be that of the respondent-obligor, the situation in Texas
is not clear. In Guerra v. DeLuna,lIos the appellate court rendered a
take nothing judgment when it found no evidence that the respondent was the natural father of the children (the unstated premise
of the trial court's judgment). Absent evidence of paternity, or of
cohabitation during the years in which the children were born,
there was no evidence of "parenthood. "lI08
If a petitioning mother is allowed to in effect merge a pateradopts a child or the child is legitimate to him. Mata v. Moreno, 601 S.W.2d 58 (Tex. Civ.
App.-Houston [1st Dist.] 1980, no writ).
204. Annot., 81 A.L.R.3d 1175 (1977). See, e.g., M. v. W., 352 Mass. 704, 227 N.E.2d
469 (1967) (mother and putative father both present in court and testified); Iowa ex rei.
Nauman v. Troutman, 623 S.W.2d 269 (Mo. Ct. App. 1981); Clarkston v. Bridge, 273 Or. 68,
539 P.2d 1094 (1975); Sardonis v. Sardonis, lOS R.I. 469, 261 A.2d 22 (1970).
205. See, e.g., Nye v. District Court, 168 Colo. 272, 450 P.2d 669 (1969); Smith v.
Smith, 11 Ohio Misc. 25, 224 N.E.2d 925 (C.P. 1965).
206. 596 S.W.2d 233 (Tex. Civ. App.-Houston [1st Dist.] 1980, no writ).
207. [d. at 235, 236.
208. 526 S.W.2d 225 (Tex. Civ. App.-Austin 1975, no writ).
209. [d. at 226.
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nity action into the URESA support proceeding, problems could
arise over whether the procedural protections required in filiation
proceedings are applicable in the URESA proceeding in which paternity is contested. Guerra and section 11.02210 of the Texas Family Code are authority for the proposition that the disputed issue
of paternity may be determined in the suit for support. When paternity is hotly disputed, difficult problems of proof are presented.
If the putative father presents evidence in the hearing that rebuts
the prima facie case presented by the verified URESA petition,
under section 11.02 the court will be required to continue the hearing for additional evidence from the petitioner. This presumably
would include the required blood tests under section 13.02, which
could be forwarded from the initiating state to the Texas court. 211
But even if paternity is acknowledged or not disputed, the alleged biological father may raise the statute of limitations issue,212
which has divided the Texas courts. In 1981 the paternity statute
of limitations was stretched from one to four years,21S and was
thereby conformed to the general statute of limitations. 214 Three
approaches have been taken to the Texas statute. One approach
has been to find the limitation period of section 13.01 (now four
years) to be an absolute bar to any child's claim not brought within
the statutory period from the child's date of birth. 2U1 A second approach has been to view the statute as being tolled during the
child's minority when applied to the claim of the child, rather than
the claim of the mother.218 A third approach has been to find the
210. TEX. FAM. CODE ANN. § 11.02 (Vernon 1975).
211. [d. § 13.02 (Vernon Supp. 1982). See Texas Dep't of Human Resources v. Delley,
581 S.W.2d 519 (Tex. Civ. App.-Dallas 1979, writ refd n.r.e.).
212. TEX. FAM. CODE ANN. § 13.01 (Vernon Supp. 1982).
213. 1981 Tex. Sess. Law Serv., ch. 674, § 2, at 2537 (Vernon).
214. TEX. REV. CIV. STAT. ANN. art. 5529 (Vernon 1958).
215. Texas Dep't of Human Resources v. Hernandez, 595 S.W.2d 189 (Tex. Civ.
App.-Corpus Christi 1980, writ refd n.r.e.); Texas Dep't of Human Resources v. Chapman,
570 S.W.2d 46 (Tex. Civ. App.-Dallas 1978, writ refd n.r.e.).
216. Texas Dep't of Human Resources v. Delley, 581 S.W.2d 519 (Tex. Civ.
App.-Dallas 1979, writ refd n.r.e.) (applying the general four-year limitation to action on
behalf of child before effective date of paternity statute). Cf. Prejean v. Prejean, 592 S.W.2d
660 (Tex. Civ. App.-Beaumont 1979, no writ) (laches not applied to nine-year delay). The
leading case avoiding the constitutional problem by holding that the statute of limitations
applies only to suits by the child's mother and not to suits by the child is HUBS v. DeMott,
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limitation unconstitutional if applied to forfeit the child's claim for
parental support simply because of the mother's failure· to timely
institute a filiation proceeding. lII7
Amount of Support
In Texas, it is clear that a valid child support order may not
be modified retroactively to affect delinquent payments. lIIS In a
URESA action, however, the petitioner may seek either a determination of a future duty of support in excess of that under an existing support decree or an original determination by the Texas
court of a duty of support not previously fixed by court order. In
such cases, the obligor could raise a "defense" to the amount of
support sought either by questioning the custodial parent's
financial status and the child's needs or by producing evidence of
his inability to pay.lIle The existence of a valid, outstanding order
of support will be treated as presumptive evidence of a current
duty.lIlio An order for support independent of an existing decree, on
the other hand, must be supported by evidence of the dependent's
needs.lIliI Moreover, an obligor may successfully contest the amount
of support claimed by showing a disproportionate ability to pay.ZlIlI
Continuance
Probably the most unsatisfactory aspect of the URESA proce215 Kan. 450, 524 P.2d 743 (1974).
217. In re Miller, 605 S.W.2d 332 (Tex. Civ. App.-Fort Worth 1980, writ granted).
For a discussion of the constitutionality of a limitation on bringing a paternity action, see
Smith Supp., supra note 6, at 55-56. A number of states have struck down paternity limitations. See 8 FAM. L. REP. (BNA) 1034-35. The United States Supreme Court recently declared the former one-year limitation unconstitutional. Mills v. Habluetzel, 102 S. Ct. 1549
(1982). Its decision raises, but does not resolve, doubts concerning the four-year limitation
that was substituted in 1981. See commentary to § 13.01 supra.
218. See TEx. FAM. CODE ANN. § 14.08(c)(2) (Vernon Supp. 1982). See Edwards v.
Edwards, 624 S.W.2d 635 (Tex. Ct. App.-Houston [14th Dist.] 1981, no writ).
219. See Holmes v. Tibbs, 542 S.W.2d 487 (Tex. Civ. App.-Corpus Christi 1976, no
writ). See also LewaIlen v. Hardin, 563 S.W.2d 356 (Tex. Civ. App.-Dallas 1978, no writ).
220. Holmes v. Tibbs, 542 S.W.2d 487, 488 (Tex. Civ. App.-Corpus Christi 1976, no
writ).
221. Casterline v. Burden, 560 S.W.2d 499 (Tex. Civ. App.-Dallas 1977, no writ).
222. Fleming v. Fleming, 595 S.W.2d 199, 202 (Tex. Civ. App.-Waco 1980, writ
dism'd).
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dure is the method of handling disputed cases. When defensive evidence is presented by the defendant, the court must give the petitioner an opportunity to contest the defendant's claim by
producing further evidence. The petitioner could opt to travel to
the responding state for the hearing, but in lieu of that he may
submit depositions or answers to interrogatories that are forwarded from petitioner's residence in the initiating state to the
court in the responding state. us The use of depositions and interrogatories could lead to lengthy continuance and a "ping-pong"
hearing of answering depositions and cross-interrogatories. 224 This
is obviously cumbersome and inimical to URESA's objectives of efficiency. Moreover, the paper-exchange process is hardly as effective and accurate as direct confrontation in a normal adversary
hearing. Use of videotape depositions or a telephone interrogatory
procedure 226 would alleviate these problems significantly, but
neither of these options is presently available under Texas
practice. 226
§ 21.35. Testimony of Husband and Wife
Laws attaching a privilege against the disclosure of
communications between husband and wife are inapplicable to proceedings under this chapter. The defendant is
a competent witness in the responding court and may be
compelled to testify to any relevant matter, including
marriage and other relevant matter establishing the
duty of support or the ability to contribute support,
which testimony may be the only evidence that is the basis for entry of an order.
223. See Lewallen v. Hardin, 563 S.W.2d 356, 358 (Tex. Civ. App.-Dallas 1978, no
writ).
224. Fox, supra note 13, at 128-29.
225. FED. R. CIV. P. 30(b)(7).
226. See United Servs. Automobile Ass'n v. Ratterree, 512 S.W.2d 30 (Tex. Civ.
App.-San Antonio 1974, writ refd n.r.e.) (telephone acknowledgment of answers to interrogatories made the answers inadmissible).
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Commentary
Although the normal rules of evidence are otherwise applicable,227 section 21.35 abolishes the husband-wife privilege as to confidential communications in URESA proceedings. 228 The practical
effect of this provision is to require the defendant-obligor to testify
concerning matters relevant to the support duty or run the risk of
having the petition granted. Moreover, the duty to support may be
established out of the mouth of the obligor himself.229
To encourage full disclosure by the defendant-obligor,
RURESA grants immunity from criminal prosecution, "with respect to matters revealed by his testimony" when the obligor is
compelled to testify.280 In Texas, however, unless the defendantobligor claims the privilege, any testimony he gives may be used
against him in a subsequent criminal prosecution. 231
§ 21.36. Rules of Evidence; Presumptions
(a) In any hearing under this chapter, the court shall
be bound by the same rules of evidence that bind the district court.
(b) In any suit brought under this chapter, if the initiating court certifies that the petition sets forth facts
from which it may be determined that the defendant
owes a duty of support and that a court of the responding
state may obtain jurisdiction over the defendant or his
property, the certified petition shall be admitted in the
responding state as prima facie evidence that the defendant's duty to support exists.
(c) In a contested case, it is presumed:
(1) that the obligor and the obligee have an equal
227. TEx. FAM. CODE ANN. § 21.36 (Vernon Supp. 1982).
228. See TEx. REV. ClV. STAT. ANN. art. 3715 (Vernon 1926).
229. BROCKELBANK, supra note 1, at 52. The last clause, making the defendant-obligor's testimony sufficient in itself, was added in 1981. 1981 Tex. Sess. Law Serv., ch. 356, §
10, at 946 (Vernon).
230. RUREsA, supra note 14, § 21.
231. Garner v. United States, 424 U.S. 648, 665 (1976).
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duty of support; or
(2) if there is a prior support order, that the most
recent order correctly designates the current
amount of support and duty of support.
Commentary
This section was amended significantly by the 1981 amendments, which added subsections (b) and (C).lIS2 The amendments
are obviously designed to remove a substantial stumbling block to
simple and efficient enforcement of support under the Texas Act.
Under prior law, the URESA petition itself and any accompanying
affidavits were inadmissible to establish the duty of support.lIS3 If
the defendant presented no defense and allowed a default judgment to be entered, or if the petition was accompanied by a certified foreign support order that could be registered, a judgment
could be entered. 234 But in cases in which the defendant had filed
an answer, the petitioner would be required to submit competent
evidence through interrogatories or otherwise, or have the petition
dismissed. 236
Under subsection (b), the certified petition states a prima facie case for support. The importance of this provision in contested
cases is that it places a burden on the defendant-obligor to present
evidence placing the duty of support in issue.
The two presumptions of subsection (c) are also intended to
ease the URESA petitioner's burden when the obligor presents a
defense. Subsection (c)(2) makes a prior support order prima facie
evidence of the current support amount needed by the obligor. By
232. 1981 Tex. Sess. Law Serv., ch. 356, § 11, at 947 (Vernon).
233. Lewallen v. Hardin, 563 S.W.2d 356, 357 (Tex. Civ. App.-Dallas 1978, no writ)
(affidavits inadmissible hearsay because not subject to cross-examination); Way v. Fisher,
425 S.W.2d 704 (Tex. Civ. App.-Houston [14th Dist.) 1968, no writ) (more than verified
petition needed to find duty of support).
234. Parker v. Parker, 593 S.W.2d 857 (Tex. Civ. App.-Houston [Ist Dist.) 1980, no
writ) (default judgment under TEx. R. CIV. P. 90 authorized, absent exception or objection
to pleadings). Under rule 90, a default judgment will be set aside only if the petition (1)
does not attempt to state a cause of action within the jurisdiction of the court, (2) does not
give fair notice to the defendant of the claim, or (3) discloses on its face the invalidity of the
claim. Stoner v. Thompson, 578 S.W.2d 679, 685 (Tex. 1979).
235. See Lewallen v. Hardin, 563 S.W.2d 356 (Tex. Civ. App.-Dallas 1978, no writ).
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making a prior order prima facie evidence of need, this section
eliminates the necessity for the petitioner to produce evidence that
the child actually requires as much as the amount specified in the
order. In such case, then, the burden is on the defendant-obligor to
establish any excessiveness by evidence of (1) the needs of the
child and (2) his ability to pay, having due regard for all lawful
obligations, including those owing to another spouse and all other
children. 286 Of course, when the petitioner seeks an amount of support not decreed in a prior order, either by way of an increase or
by an original determination of an amount, the petitioner has the
burden of proof. The presumption of subsection (c)(l) will aid the
petitioner in this situation. It responds at least in part to the holding of Lewallen u. Hardin.287 Since the ultimate support obligation
of each parent is that which is commensurate with his or her respective abilities, considered against the background of the child's
needs, the Dallas Court of Civil Appeals in Lewallen reversed the
trial court's URESA support order because the mother-petitioner
failed to present any competent evidence of her ability to support
the child. 288 What effect does subsection (c)(l) have on this holding? Because the essence of the support duty is ability to contribute, the presumption of equal duty under the subsection necessarily assumes an equal ability on the part of the respective
parents. 289 Hence, that part of Lewallen which would require evidence of the respective circumstances of both parents apparently is
overruled. If the need of the child is a particular amount, which
presumably will be established by the verified petition, the court
can apportion that amount equally between the parents based on
the presumption of equal ability.
236. Holmes v. Tibbs, 542 S.W.2d 487 (Tex. Civ. App.-Corpus Christi 1976, no writ).
237. 563 S.W.2d 356 (Tex. Civ. App.-Dallas 1978, no writ).
238. [d. at 358.
239. [d. at 357·58. Apparently the legislature intended the term "obligee" in subsec·
tion (c)(l) to mean the custodial parent seeking support. Technically, the "obligee" is the
child to whom the duty of support is owed. TEx. FAM. CODE ANN. § 21.03(8) (Vernon 1975 &
Supp. 1982). The minor child obviously does not have any support duty to himself.
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§ 21.37. Support Order
If the court of the responding state finds a duty of
support, it may order the defendant to furnish support or
reimbursement therefor and subject the property of the
defendant to such order.
Commentary
The terms of section 21.37 leave open the extent of the responding court's power in fixing the amount of the support duty.
The Act contemplates an independent de novo review of the issue
of the amount and does not require reference to or conformity with
any prior support order.uo
Under this section, the court may order (1) the payment of
amounts in arrears, (2) reimbursement to the parent or state of
amounts expended for support owed by the obligor, and (3) the
payment of future support.
An "arrearage" refers to money overdue or unpaid under a
prior order. Texas courts have permitted a URESA judgment for
delinquent payments due under an outstanding support order.141
This is consistent with the law concerning local support orders.14lI
Although not considered a debt, a judgment for back child support
payments may be enforced by any means available for enforcement
of a debt judgment. us To obtain a judgment for arrearages due
under a prior support order, the URESA petitioner may use the
registration provisions of the Act coupled with an allegation of
nonpayment. U4 In civil enforcement cases in which the URESA petitioner relies not on a prior support order but simply on a preexisting duty, a judgment for arrearages does not appear possible.
The petitioner may obtain reimbursement, however, for expenses
actually incurred during the period in which the obligor failed to
240. Fox, supra note 13, at 130.
241. See, e.g., In re Solomon, 546 S.W.2d 129 (Tex. Civ. App.-Texarkana 1977, writ
refd n.r.e.); Strader v. Strader, 517 S.W.2d 905 (Tex. Civ. App.-Waco 1974, no writ).
242. See TEx. FAM. CODE ANN. § 14.09(c) (Vernon 1975).
243. Smith v. Bramhall, 563 S.W.2d 238 (Tex. 1978); TEx. FAM. CODE ANN. § 14.09(c)
(Vernon 1975).
244. See TEx. FAM. CODE ANN. § 21.65 (Vernon 1975); commentary to § 21.65 infra.
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provide support. 2411
Statutes of limitation must be taken into account in URESA
proceedings either to enforce an unpaid judgment for child support
or to obtain reimbursement. The ten-year limit applicable to judgments, rather than the general, four-year limit, has been applied to
an action to enforce a domestic judgment for back child support
and is to be counted from the date each installment accrued. 248
This approch is not unanimous. 247 It has been argued that regardless of which statute is applied, it should be tolled during the minority of the child. 248 Whatever limit is ultimately deemed proper
should apply equally to URESA actions. Reimbursement actions
will likely be governed by the limit applicable to debts, namely,
four years. 249
In O'Halloran u. O'Halloran,26o a division of opinion was noted
over whether the civil enforcement provisions of URESA allow the
responding court to modify an existing support decree of the initiating state. The court noted that the "majority view is that modification, at least as to future obligations, is permitted if found by
the responding state to be justified."261 In Holmes u. Tibbs,2&2 the
court appeared to assume that a prospective modification of a foreign order would have been permissible had the petitioner
presented sufficient evidence of the child's needs to overcome the
presumption in favor of the amount in the existing order.2l1s Likewise, a petitioner seeking a prospective order of support without
the benefit of an existing order must shoulder the burden of estab245. See Dilger v. Dilger, 271 S.W.2d 169 (Tex. Civ. App.-Amarillo 1951, no writ);
commentary to § 21.22 supra, at note 103. See also Ainbender v. Ainbender, 344 A.2d 263
(Del. Super. Ct. 1975); Skinner v. Fasciano, 137 N.E.2d 613 (Ohio Ct. App. 1956).
246. Mitchell v. Mitchell, 575 S.W.2d 311 (Tex. Civ. App.-Dallas 1978, no writ);
Houtchens v. Matthews, 557 S.W.2d 581 (Tex. Civ. App.-Fort Worth, 1977, writ dism'd).
See Solender, Family Law: Parent and Child, Annual Survey of Texas Law, 33 Sw. L.J.
155, 172 (1979).
247. See Ex parte Payne, 598 S.W.2d 312 (Tex. Civ. App.-Texarkana 1980, no writ).
248. Solender, Family Law: Parent and Child, Annual Survey of Texas Law, 35 Sw.
L.J. 151, 167 (1981).
249. TEx. REV. CIV. STAT. ANN. art. 5527 (Vernon Supp. 1982).
250. 580 S.W.2d 870 (Tex. Civ. App.-Texarkana 1979, no writ).
251. Id. at 872.
252. 542 S.W.2d 487 (Tex. Civ. App.-Corpus Christi 1976, no writ).
253. Id. at 488.
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lishing the amount of the obligation by competent evidence of the
circumstances of both parents and the needs of the child.lIM
Prior to the passage of section 14.09 of the Family Code, a
child support order was enforceable only by contempt. Now, the
Code provides that the court may render a judgment for the unpaid amount, and this judgment may be enforced by any means
available for the enforcement of judgments for debts.lIlIlI Under
URESA, the same result may be accomplished by a registration
petition.lI lI8 The provision of section 21.66 for subjecting the property of the defendant to the child support order is an analog to
section 14.05 of the Code, which recognizes that the power to order
support is "in rem in the sense that the parent's obligation of support could be satisfied from their property, which could be subjected to a trust to insure the duty of support was discharged."lIII7
1 21.38. Transmittal of Orders
The court of this state when acting as a responding
state shall cause to be transmitted to the court of the initiating state a copy of all orders of support or for reimbursement therefor.
Commentary
This housekeeping provision conforms to the provisions of sections 21.40 and 21.41 that make the court of the initiating state the
disbursing agent to the obligee of funds collected from the obligor
in the responding state.
There is no requirement under the Act that the petitioner be
notified of the disposition of the petition. Presumably, that information will be conveyed to the petitioner by the court to which the
responding state court's order is transmitted under this section.
254.
255.
256.
257.
See commentary to § 21.36 supra.
TEx. FAM. CODE ANN. § 14.09(c) (Vernon 1975).
See commentary to § 21.66 infra.
Smith, supra note 38, at 430.
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1 21.39. Enforcement Power of Court
In addition to the foregoing powers, the court of this
state when acting as the responding state has the power
to subject the defendant to such terms and conditions as
the court may deem proper to assure compliance with its
orders, and in particular:
(1) to require the defendant to furnish a cash deposit or bond of such character and in such amount
as the court may deem proper to assure payment of
any amount required to be paid by the defendant;
(2) to require the defendant to make payments at
specified intervals to the district clerk or probation
department of the court;
(3) to punish the defendant who shall violate any
order of the court to the same extent as is provided
by law for contempt of the court in any other suit or
proceeding cognizable by the court; and
(4) to order the defendant (obligor) to pay as
court costs a reasonable fee to any attorney or to the
prosecuting attorney's office who represents the petition in any enforcement proceeding.
Commentary
The clear intent of this section is to give the URESA court
"whatever equitable powers are necessary to effectuate the purpose
of the Act"lIII8 and not to limit the legal and equitable powers the
258. Abb v. Crossfield, 23 Md. App. 232, _, 326 A.2d 234, 238 (1974). Such an approach is consistent with the public policy of the state in child support cases. See Ubi v.
Ubi, 524 S.W.2d 534, 538 (Tex. Civ. App.-Fort Worth 1975, no writ).
In Smith, supra note 38, at 472, the author notes that the powers of the court to enforce
payment under chapter 21 "are distinct, and different, from those of the court under Chapter 14." Nonetheless, the Texas courts have indicated a tendency to view the provisions of
the Family Code concerning child support, including the remedies of chapter 14, as available
to the URESA obligee. For example, though not specifically included as a remedy in the
civil enforcement provisions, as it is in the registration section, a judgment for arrearages
apparently will be allowed in a URESA civil enforcement action. See Howard v. Brizendine,
546 S.W.2d 136 (Tex. Civ. App.-Beaumont 1977, no writ); Solomon v. Solomon, 546
S.W.2d 129 (Tex. Civ. App.-Texarkana 1977, writ rerd n.r.e.).
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court otherwise has at its disposal. In addition to the power under
section 21.37 to subject the defendant's property to a child support
order, this section authorizes enforcement of future support orders
by means directed against the defendant-obligor personally.
Paragraph (1) allows the court to require the obligor to post a
bond to secure payment of support, with the decision of when and
in what amount apparently left to the reasonable exercise of discretion by the judge. IIIB
The intent of paragraph (2) in requiring payments to the clerk
or the court probation department was to keep control and accounting within the purview of the court. leo The court is to broker
all payments, which under section 21.40 are to be forwarded to the
initiating state.
Paragraph (3) incorporates by reference the contempt remedy
available under Texas law for enforcement of child support
orders. lel
The authority of the court in this section to impose attorneys'
fees as costs is different from the general provisions for attorneys'
fees in section 11.18(a) of the Code, which allows an award directly
to the attorney and enforcement of the award in his own name. lei
The apparent intent is that the court will order reasonable compensation to the attorney from the costs collected. les
By reference to section 21.29, none of the proper costs of the
URESA proceeding can be taxed to the petitioner. l84 Included
would be the fees of either the prosecuting attorney or a private
attorney designated by the court to represent the URESA petitioner. However, it has been held that when a URESA petitioner
unilaterally and without good reason retained private counsel in a
case in which the prosecuting attorney had assumed the duty to
259. See Rice v. Rice, 165 Neb. 778, 87 N.W.2d 408 (1958) ($1500 bond permissible
where assets were personal property that could be disposed of); Freeman v. Freeman, 226
La. 410, 76 So. 2d 414 (1954) (bond authorized).
260. BROCKELBANK, supra note I, at 71.
261. TEx. FAM. CODE ANN. § 14.09 (Vernon 1975).
262. Smith Supp., supra note 6, at llO.
263. This provision makes sense. Given the primary purpose of URESA, to obtain
support for children, and considering the typical collection problems, the court should monitor how the amounts collected are apportioned.
264. See commentary to § 21.29 supra.
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act, she was liable for legal services rendered by private counsel. 181i
The message is clear. A URESA petitioner who is dissatisfied with
the response of the prosecuting attorney and wishes the case to be
diligently pursued by private counsel should move to have the
Texas court appoint a private attorney. Otherwise, the obligee-petitioner runs the risk that the Texas court will find that the services of a private attorney were not "necessary" and, on that
ground, refuse to assess attorneys' fees against the obligor even if
the petition is successful,288 A URESA petitioner initiating the action in Texas should be equally cautious about retaining private
counsel in a foreign responding state before looking to the available remedies for prosecutorial inaction under the foreign law.
§ 21.40. Receipt and Disbursement of Payments-Responding State
The court of this state when acting as a responding
state shall have the following duties which may be carried out through the district clerk or probation department of the court:
(1) on the receipt of payment made by the defendant pursuant to any order of the court or otherwise,
to transmit the same forthwith to the court of the initiating state; and
(2) on request, to furnish to the court of the initiating state a certified statement of all payments
made by the defendant.
Commentary
Once the court of the responding state has received payments
pursuant to its order, it has no choice but to remit them to the
initiating state. A Georgia court, for example, held that the trial
265. Olson v. Olson, 534 S.W.2d 526, 533 (Mo. Ct. App. 1976). But the URESA obligee
is not precluded from retaining private counsel. Ball v. Haughton, 60 Ill. App. 3d 562, 377
N.E.2d 78 (1978) (improper to dismiss URESA petition because private attorney retained).
266. See Drexel v. McCutcheon, 604 S.W.2d 430 (Tex. Civ. App.-Waco 1980, no
writ).
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court of the responding state did not have authority to withhold
payments, pending location by the California authorities of the exact location and address of the petitioner and minor children and
transmittal of that information to the Georgia court. 267
§ 21.41. Receipt and Disbursement of Payments-Initiating State
The court of this state when acting as an initiating
state shall have the duty which may be carried out
through the district clerk or probation department of the
court to receive and disburse forthwith all payments
made by the defendant or transmitted by the court of the
responding state.
Commentary
The initiating state's court has only a single follow-up duty: to
receive and disburse to the obligee the funds transmitted from the
responding state.
§ 21.42. Stay of Proceedings
No proceeding under this chapter shall be stayed because of the existence of a pending suit for divorce, separation, annulment, dissolution, habeas corpus, custody
proceeding, or suit affecting the parent-child relationship.
Commentary
The purpose of this section is obvious: to prevent frustration
of the Act by long delays in waiting until matters ancillary to the
question of support are settled. 268 It furthers the objective of the
Act to provide remedies that "are in addition to and not in substi267.
268.
Thibadeau v. Thibadeau, 133 Ga. App. 154, 210 S.E.2d 340 (1974).
BROCKELBANK, supra note 1, at 63-64.
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tution for any other remedies. "269 This provision was amended in
1981 to add a SAPCR to the list of proceedings the pendency of
which will not be grounds for a stay of the URESA action.270 Coupled with the amendments that eliminate the exclusive and continuing jurisdiction of the court in which a SAPCR has been filed,
this section establishes the independent identity of URESA actions in this state. The dichotomy of the prior law-that pending
out-of-state proceedings would not bar a URESA action in Texas
whereas an in-state proceeding would-has been eliminated.
Under the pre-1981 section 21.24 of the 1973 Family Code, "if
the child for whom support is sought is the subject of a suit affecting the parent-child relationship, the court having continuing jurisdiction under Section 11.05 of this code has exclusive jurisdiction
of a suit under this chapter."m That provision was reflective of the
pre-URESA position that the sole remedy for failure to comply
with a child support order ancillary to a Texas divorce was a contempt action filed in the court granting the divorce. 272 But after
URESA was adopted and before section 21.24 was passed, Westphal v. Palmer27s rejected the unitary approach and allowed an independent URESA action in the Texas district court that had
granted the petitioner a divorce, rather than relegating her to a
contempt action.
When section 21.24 was enacted, its inconsistency with the remedial nature of chapter 21 was apparent, and some Texas courts
tended to read it narrowly. In Strader v. Strader,274 a pending suit
for support in the federal court was not a bar to an action in the
Texas state court to enforce the same support obligation. The
Tyler Court of Civil Appeals in Raney v. Raney270 appears to have
ignored section 21.24 completely in holding improper the dismissal
of a URESA action transferred to a Texas district court from
Oklahoma when a divorce suit was pending in another Texas dis269.
270.
271.
272.
273.
274.
275.
TEx. FAM. CODE ANN. § 21.04 (Supp. 1982).
See commentary to §§ 21.04. 21.24 supra.
1973 Tex. Gen. Laws. ch. 543. § 1. at 1436.
Freeland v. Freeland. 313 S.W.2d 943 (Tex. Civ. App.-Dallas 1958. no writ).
480 S.W.2d 277 (Tex. Civ. App.-Houston [14th Dist.] 1972. no writ).
517 S.W.2d 905 (Tex. Civ. App.-Waco 1974. no writ).
536 S.W.2d 617 (Tex. Civ. App.-Tyler 1976. no writ).
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trict court. However, the Dallas Court of Civil Appeals in In· re
Miller'78 disallowed successive URESA petitions in separate Texas
courts on the basis of the continuing and exclusive jurisdiction
concept embodied in section 21.24, that a court may not stay or
dismiss a petition simply because there exists a pending or prior
action for divorce or because another court in this or any other
state has already issued a support order in some other proceeding.
The question of the propriety of successive URESA actions
presented in Miller remains open. Literally, if Miller is correct, the
amended section 21.42 includes a URESA action. Accordingly, successive URESA actions would not be absolutely barred. Apparently, however, res judicata principles could operate as a limitation
on a subsequent URESA action in those instances in which no new
issues are raised. 2 '7'7 Moreover, a second URESA action filed in one
county or district may be transferred to the court hearing the original URESA petition if that court still may obtain jurisdiction of
the defendant.2'78
I 21.43. Application of Payments
No order of support issued by a court of this state
when acting as a responding state shall supersede any
other order of support, but the amounts for a particular
period paid pursuant to either order shall be credited
against amounts accruing or accrued for the same period
under both.
Commentary
The prevailing view under this section is that in a URESA
civil enforcement action the court of the responding state is free to
issue an independent order of future support in an amount different from that set by a court of the initiating state.2'79 A Texas
276. 583 S.W.2d 872 (Tex. Civ. App.-Dallas 1979, no writ).
277. Howard v. Brizendine, 546 S.W.2d 136 (Tex. Civ. App.-Beaumont 1977, no
writ); see Elsner v. Elsner, 425 S.W.2d 254 (Mo. Ct. App. 1967).
278. See TEx. FAM. CODE ANN.· § 21.45 (Vernon Supp. 1982).
279. Ainbender v. Ainbender, 344 A.2d 263 (Del. Super. Ct. 1975); Banton v. Mathers,
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court, reviewing the cases on this point, concluded: "The majority
view is that modification, at least as to future obligations, is permitted if found by the responding state to be justified."280 This is
not quite accurate. Section 21.43 makes it clear that when Texas is
the "responding state" in a civil enforcement proceeding rather
than a "registering state" in a registration proceeding, any order of
support it issues is not considered a modification of the foreign
state's order. Under section 21.43, full faith and credit considerations are irrelevant. 281 Relying in part on the notion that URESA
is an "additional remedy," the majority of courts have taken the
position that under section 21.43, a URESA civil enforcement proceeding, as distinguished from a registration action, is not an action to enforce or modify a prior support order. It is merely an
action to determine, on the basis of the present circumstances of
the obligor and obligee, the present and future duty of support independently of any pending orders.282
The order issued by the responding state is merely supplementary to, and does not "supersede," the original order. The original
order of support is unaffected by a subsequent URESA order in
the responding state, except to the extent that payments made to
satisfy one order must be credited against the other. The sole purpose of this provision is to prevent duplication of payment. The
state of the original order "may continue to measure defendant's
obligations within its borders under the decree, notwithstanding a
subsequent order of support."283 Thus, the responding state's court
309 N.E.2d 167 (Ind. Ct. App. 1974) (full faith and credit not applicable to URESA support
orders); Commonwealth v. Byrne, 243 A.2d 196 (Pa. 1968) (court in Pennsylvania adopted
the "recommendation" of the California court as to an increased amount); Stubblefield v.
Stubblefield, 272 S.W.2d 633 (Tex. Civ. App.-Texarkana 1954, no writ). This position is
reinforced by RURESA, which in § 31 provides that a support order issued under the Act
does not nullify a support order issued by another court under the Act "unless specifically
provided by the court." RURESA, supra note 14, § 31. For a purported modification to be
effective, it must be held that the URESA petitioner by seeking relief has submitted to the
jurisdiction of the responding court. See Note, supra note 2, at 421.
280. O'Halloran v. O'Halloran, 580 S.W.2d 870, 872 (Tex. Civ. App.-Texarkana 1979,
no writ).
281. Fox, supra note 13, at 130-31.
282. See, e.g., Ray v. Pentlicki, 375 So. 2d 875 (Fla. Dist. Ct. App. 1979).
283. Elkind v. Byck, 68 Cal. 2d 453, 439 P.2d 316, 67 Cal. Rptr. 404 (1968); see
Ainbender v. Ainbender, 344 A.2d 263 (Del. 1975); Howard v. Howard, 191 So. 2d 528 (Miss.
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§21.43
is free to set any amount that is justified under the circumstances,
the same as, more than, or less than the existing support order in
the foreign state. The order is effective during the period of the
obligor's presence in the responding state.
Viewing the URESA civil enforcement action as independent
of the prior order could have significant evidentiary consequences.
If the URESA action were considered a modification proceeding,
the petitioner would have the burden of establishing a substantial
change of circumstances to justify a higher amount than that set
prior to the order.
There is a suggestion in some cases, on the other hand, that in
an independent URESA action, the responding state is not presumptively bound by the prior order.284 This is not the case in
Texas. The Texas courts have displayed a traditional deference to
the foreign state's order,2811 a deference that has been codified in
section 21.36,286 which gives a current support order a presumptive
effect. Hence, a URESA petitioner in Texas relying on a prior order as establishing the support duty will be able to establish an
entitlement to a higher amount only by meeting the burden imposed in a modification action.
It is the apparent intent of section 21.43 to except intrastate
URESA proceedings from its ambit. Only when Texas is "acting as
a responding state" (that is, in interstate enforcement proceedings)
is the Texas court's support order independent of the original order. When the URESA proceeding is intrastate in character, section 21.45 applies. Considerable confusion and unfairness would result if different support orders were issued by different Texas
courts. 287 Hence, in any proceeding in a judicial district other than
the district issuing the original support order, if the second court
purports to do anything other than to enforce the original order,
1966).
284. See note 283 supra.
285. See Sampson Supp., supra note 10, at 176-78.
286. TEx. FAM. CODE ANN. § 21.36 (Vernon Supp. 1982).
287. An example of such confusion is illustrated by Nomer v. Kossman, 100 Idaho 898,
606 P.2d 1002 (1980). See also Ray v. Pentlicki, 375 So. 2d 875 (Fla. Dist. Ct. App. 1979)
(noting that concurrent proceedings in the same court pose a problem of internal court
management).
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its action should be treated as modifying and superseding the original order, at least to the extent that its provisions vary. It should
be noted that since each Texas court's jurisdiction is statewide,
there is no question about the subsequent court's subject matter
jurisdiction to modify the original award.
§ 21.44. Participation in Proceeding
Participation in any proceedings under this chapter
shall not confer upon any court jurisdiction of any of the
parties thereto in any other proceeding.
Commentary
This section has been labeled unnecessary as self-evident. 288 It
reinforces the notion underlying URESA that it is an ancillary
remedy for enforcement of support and nothing else. Its purpose is
"to allow URESA support proceedings to be free of other issues in
the 'parent-child relationship.' "289 Accordingly, courts almost
uniformly hold that counterclaims or other attempts to litigate collateral matters, such as divorce, separation, annulment, or child
custody, are prohibited. 290 Even if the Texas court were
constitutionally authorized to assert jurisdiction over the petitioner concerning matters other than the support obligation, this
section would limit jurisdiction of the court to a determination of
whether there is a duty of support and in what amount.
Of course, some of the evidence relating to the marital relationship and child custody may be relevant to the duty of support,
but that evidence should be considered only collaterally and as it
relates to the sole and ultimate issue of child support. To the extent that paternity and other circumstances relevant to the existence of a support duty have already been determined by a foreign
order, they will be taken as established. 291
288.
289.
290.
291.
438 (S.C.
BROCKELBANK, supra note I, at 61.
In re Miller, 583 S.W.2d 872, 873 (Tex. Civ. App.-Dallas 1979, no writ).
See generally Annot., 42 A.L.R.2d 768 (1955).
Bjorgo v. Bjorgo, 402 S.W.2d 143 (Tex. 1966); see Balestrine v. Jordan, 272 S.E.2d
1980).
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Will a "counterclaim" for reduction or "modification" of the
amount of support claimed be permitted? URESA itself is silent
on the issue. Section 21.37 provides only that the responding court
"may order the obligor to furnish support." The answer should depend on the nature of the petition. If the petition is for registration, the defendant-obligor is limited to raising defenses that attack the validity of the original order and is prohibited from
contesting the amount of support ordered. In a civil enforcement
proceeding, however, in which the petitioner asks the responding
court to take a "fresh look at the whole matter,"1I911 the defendant
should be able to contest either the existence or the amount of the
support duty.
Suppose W obtains a divorce from H in state X and receives
an order of child support for the two children of the marriage in
the amount of $100 a month for each child. Two years after the
order, W agrees with H that he may take one of the children with
him to Texas. H makes reduced payments of $100 per month from
Texas. Three years later W files a URESA petition in state X,
which is forwarded to a Texas court. If she seeks to register the
foreign order, the defendant likely will be unable to contest registration. But if W's action is one for civil enforcement of a support
duty in the amount of $200 (or any other amount), H should be
able to present evidence in the nature of a defense based on a
change of circumstances since the original order. To refer to his
contention that he should be liable for a reduced amount as a
counterclaim for modification would be inaccurate, since there
would be no Texas judgment to modify. Only if the judgment of
state X were registered in Texas would H be able to seek its modification in a Texas court.
§ 21.45. Interdistrict Application
(a) This chapter is applicable when both the plaintiff
and the defendant are in this state but in different judicial districts.
292.
Fox, supra note 13, at 130.
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(b) If the initiating court finds that the petition sets
forth facts from which it may be determined that the defendant owes a duty of support and finds that another
court in this state may obtain jurisdiction of the defendant or his property, the clerk of the court shall send
three copies of the petition and a certification of the flndings to the court of the judicial district in which the defendant or his property is found. The clerk of the court
receiving these copies shall notify the prosecuting attorney of their receipt. The prosecuting attorney and the
court to which the copies are forwarded shall then have
duties corresponding to those imposed upon them when
acting for the state as a responding state.
(c) In a suit under this section, no defense may be
raised other than payment and satisfaction of the support obligation or invalidity of the decree or judgment
creating the obligation.
Commentary
This section is an intrastate mirror of the interstate version of
a URESA proceeding. Dropped by the 1981 amendments was the
requirement of transfer of the proceeding to any court within the
state that had continuing jurisdiction of a "suit affecting the parent-child relationship" under section 11.05. 293 As provided in section 21.42, the fact of pending suits that may relate to the support
obligation is not a basis for staying the URESA action, nor is the
existence of a support order by another court of this state a ban to
the URESA action. The 1981 amendment returns Texas effectively
to the situation existing before January I, 1974. Irrespective of another court's "continuing jurisdiction" under section 11.05, the
Texas court in which the URESA petition is filed must forward the
petition to another court in the state only if that court is better
able to obtain jurisdiction of the obligor.
Subsection (c), formerly subsection (d), which limits the defenses available to the obligor to satisfaction or invalidity of the
293.
1981 Tex. Sess. Law Serv., ch. 356, § 13, at 947 (Vernon) (codified at TEx.
§ 21.45 (Vernon Supp. 1982».
CODE ANN.
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§21.61
support obligation, appears to create an anomaly. The effect of
subsection (c) is to limit the obligor in an intrastate URESA action
to those defenses that could be raised in proceedings to enforce the
judgment of the original court. Before the 1981 amendment, it
made sense because the unamended section 21.45 contemplated
resolution of all support issues in the court that originally entered
an order affecting the parent-child relationship, including support.
But subchapter C does not involve simply a procedure to enforce a
support judgment. If, as indicated earlier, there exists no prior
support order or the petitioner seeks redetermination of the
amount due, the petitioner wants more than simply enforcement of
an existing judgment. Should not the obligee be able to interpose
the same defenses permitted under an interstate proceeding? Otherwise, he could claim unequal treatment.
Perhaps subsection (c) should be applied only to those intrastate URESA actions that seek only enforcement of a support order as decreed by another court. The subsection's purpose was to
prevent a new hearing on questions of reasonableness or modification of support obligations. 294 This makes sense if the initiating
Texas court merely needs to determine the existence of a support
order. The obligor's remedy would be to seek modification in the
court of the state originally issuing the order. But does it make
sense when there is no prior order and the initiating court's probable cause determination of a duty of support is based on circumstances other than the existence of a prior support order?
SUBCHAPTER D. REGISTRATION OF FOREIGN
SUPPORT ORDERS
§ 21.61. Additional Remedies
If the duty of support is based on a foreign support
order, the obligee has the additional remedies provided
by this subchapter.
294. Smith, supra note 38, at 475-76.
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Commentary
Subchapter D of URESA provides for registration of a foreign
support order as an alternative to the normal, more complicated
civil enforcement procedure. This section means that in those cases
in which there is an outstanding prior support order, the URESA
petitioner may choose to proceed under subchapter D rather than
subchapter C. Moreover, the petitioner still has the additional
remedies otherwise available under state law.
§ 21.62. Registration
The obligee may register the foreign support order in
a court of this state in the manner, with the effect, and
for the purposes herein provided.
Commentary
The Texas URESA registration procedure, it has been noted,
is in effect "simply a proceeding for the enforcement of a foreign
judgment, similar to a proceeding under the full faith and credit
clause of the United States Constitution."2911 Full faith and credit
is required of support orders to the extent that payments thereunder have accrued and are not retroactively modifiable where the
judgment was rendered. 29s But orders for future support, which remain nonfinal and modifiable, are not usually entitled to full faith
and credit.297 Hence, as to the latter, URESA constitutes an extension of the constitutional mandate by treating such orders as final.
A foreign alimony decree is enforceable in Texas only to the extent
that recognition is mandated by full faith and credit, (that is, only
if it is vested and absolute where rendered).298 Because alimony is
295. O'Halloran v. O'Halloran, 580 S.W.2d 870,873 (Tex. Civ. App.-Texarkana 1979,
no writ).
296. Sistare v. Sistare, 218 U.S. I, 16-17 (1910); Fox, supra note 13, at 130-31. See also
H. KRAUSE, FAMILY LAW IN A NUTSHELL 224-25 (1977).
297. Sistare v. Sistare, 218 U.S. I, 17 (1910); Lynde v. Lynde, 181 U.S. 183, 186-87
(1901).
298. Parker v. Parker, 593 S.W.2d 857, 859 (Tex. Civ. App.-Houston [1st Dist.) 1980,
no writ).
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121.64
not included within the Texas definition of the duty of support, a
foreign judgment for alimony, whether accrued or not, cannot be
registered under URESA.299 .
§ 21.63. Registry of Foreign Support Orders
The clerk of the court shall maintain a registry of
foreign support orders in which he shall record foreign
support orders.
§ 21.64. Petition for Registration
The petition for registration shall be verified and
shall set forth the amount remaining unpaid and a list of
any other states in which the support order is registered
and shall have attached to it a certifie copy of the support order with all modifications thereof. The foreign
support order is registered upon the filing of the petition
subject only to subsequent order of confirmation.
Commentary
Under the Texas version of URESA, the obligee seeking rregistration must forward to the registering state a verified petition
that states the amount remaining unpaid and a list of other states
in which the support order is registered and to which a certified
copy of the support order with all modifications is attached. The
language appears to permit the petitioner to bypass the rendering
court and personally register the order. Whether the Texas courts
will require the obligee to file the registration petition in a court of
the rendering state initially is not clear.30o
None of the provisions of this subchapter dealing with regis299. Adams v. Adams, 441 S.W.2d 917, 919-20 (Tex. Civ. App.-Houston [1st Dist.)
1969, no writ). The foreign judgment for vested alimony will be given full faith and credit in
Texas, however. Rumpf v. Rumpf, 150 Tex. 475, 479, 242 S.W.2d 416, 417 (1951); Gard v.
Gard, 150 Tex. 347, 350, 241 S.W.2d 618, 619 (1951).
300. See Fox, supra note 13, at 132.
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§21.64 TEXAS TECH FAMILY SYMPOSIUM [Vol. 13:1025
tration address the question of who represents the petitioner. Presumably, the provisions of subchapter C will apply to the respective prosecuting attorneys to represent the petitioner in both the
rendering and registering states. 301
§ 21.65. Jurisdiction and Procedure
The procedure to obtain jurisdiction of the person or
property of the obligor shall be as provided in civil cases.
The obligor may assert any defense available to a defendant in an action on a foreign judgment. If the obligor defaults, the court shall enter an order confirming the registered support order and determining the amounts
remaining unpaid. If the obligor appears and a hearing is
held, the court shall adjudicate the issues including the
amounts remaining unpaid.
Commentary
Texas decisions suggest that in cases seeking registration,
modification of the foreign support order for either past or future
support payments is not allowed. 302 The only defenses available are
those which may be interposed in a full faith and credit inquiry-namely, those which relate to the validity of the original
decree, such as lack of jurisdiction or the existence of procedural
defects that render the judgment void. 303 That this should be an
absolute rule is questionable, at least in some instances in which
the defendant-obligor appears and presents evidence bearing on
the support obligation. The leading commentator on URESA provides the following examples. Suppose one of the children named
301. See BROCKELBANK, supra note 1, at 82. RURESA, supra note 14, § 38 provides that
the prosecuting attorney must represent the obligee in either the rendering or registering
state on the request of the court.
302. Littrell v. Littrell, 601 S.W.2d 207, 209 (Tex. Civ. App.-Beaumont 1980, no
writ); O'Halloran v. O'Halloran, 580 S.W.2d 870, 873 (Tex. Civ. App.-Texarkana 1979, no
writ).
303. O'Hailoran v. O'Hailoran, 580 S.W.2d 870, 873 (Tex. Civ. App.-Texarkana 1979,
no writ).
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§21.66
in the original support order has died or the defendant's income
has been cut in half since the original order. Under the literal language of section 21.65, "the amount remaining unpaid" is only one
of the issues the court "shall adjudicate" in the event of a
hearing. 804
This suggests the possibility that a court will modify a support
order even under the registration provisions of the Act. But at
least two Texas courts have concluded that under this section the
registering court cannot entertain the obligor's motion to modify in
the registration proceeding. 30Ii
However, since the order as confirmed has the same effect as a
local support order, the obligor could immediately file a motion to
modify after the judgment of confirmation was entered. In particularly compelling circumstances, such as previously hypothesized,
that, in the judge's opinion, clearly warrant modification, it would
be within the discretion of the judge to refuse to confirm the order
and permit the petitioner to amend the petition to an ordinary reciprocal petition. This latter somewhat circuitous approach has the
advantage of avoiding unnecessary litigation without expanding
the limited scope of the registration procedure.
In Texas, a valid child support order may not be modified retroactively to affect delinquent support payments. 80e Hence, a confirmed foreign support order, which shall have the same force and
effect as a local order,307 will constitute a final judgment as to payments overdue and unpaid.
§ 21.66. Eft'ect and Enforcement of Support Order
The support order as confirmed shall have the same
eft'ect and may be enforced as if originally entered in the
court of this state. The procedures for the enforcement
thereof shall be as in civil cases, including the power to
punish the defendant for contempt as in the case of other
304.
305.
306.
307.
note I, at 85.
Note 302 supra.
TEx. FAM. CODE ANN. § 14.08(c)(2) (Vernon Supp. 1982).
[d. § 21.66 (Vernon 1975).
BROCKELBANK, supra
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§21.66 TEXAS TECH FAMILY SYMPOSIUM
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orders for payment of temporary alimony, maintenance,
or support entered in this state.
Commentary
This section incorporates by reference the procedures available under Texas law for enforcement of child support orders. The
contempt remedy is specifically mentioned. 308 Since the registration proceeding is also an action to enforce delinquent payments,
the court cannot modify the support order, including the amount
in arrears, in that proceeding. However, the court does have the
power to forgive or reduce any unpaid amounts. 309
308. Note that in 1981, chapter 14 of the Texas Family Code was amended to include
probation of contempt as an alternative enforcement device. 1981 Tex. Sess. Law Serv., ch.
674, § I, at 2536·37 (Vernon) (adding TEx. FAM. CODE ANN. §14.12 (Vernon Supp. 1982».
309. Edwards v. Edwards, 624 S.W.2d 635, 638·39 (Tex. Civ. App.-Houston [14th
Diat.) 1981, no writ).
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