                             QMficeof tip !ZlttornepQhneral
                                           &date of I[texas
DAN MORALES
 .A?TORNEY
       GENERAL                                 May 13, 1993



     Honorable Jet&y D. Herrington                    Opiion No. DM-222
     Criminal District Attorney
     Anderson County Courthouse                       Re: Whether a child support obligee may
     500 North Church Street                          modify a child support order by 6ling with a
     Palestine, Texas 75801                           district clerk a limited power of attorney
                                                      authoriaing a corporation to receive child
                                                      support payments paid through the district
                                                      ckrkk office along with a request that the
                                                      clerk send the child support payments to that
                                                      corporation (RQ-478)

     Dear Mr. Herrington:

              You have asked us to determine the responsibility of a district clerk when a child
      support obtigee files with the clerk a limited power of attorney assigning to a corporation
     thetighttoreccive     child support paid through the clerks office along with a request that
     the clerk send child support payments it mceives to the corporation named in the limited
     power of attorney. As a threshold issue, we must determine whether the child support
     obhgee may modify the child support order simply by thing these documents. We
     determine that a child support obligee may not modii the child support order; only the
     cant with combming, exchtsive jurisdiction in the case may modify the child support
     order. Hence, in such a situation, the district clerk’s responsibiity is to comply with the
     terms of the existing child support order unless and until the proper court modifies the
     Oh.’
             As background, you state the following:

                In 1990, Mr. and Mrs. M. were divorced in Anderson County. Mrs.
                M. was named the managiq conservator of Baby M. The Fii
                Decree of Divorce provided that Mr. M. shag pay [child support] to
                Mrs. M. . in the amount of 8150.00 a month. The Final Decree
                tiuther provides that all child support payments be made through the

               IWe dctamhc in this opinion only whcthu a child supportoblige may authoti pqmutt of
     cbildrupportpaymntstopnmtityotherthenthatprovidedinthccourtorda.                Wettndcrstaudthata
     courtordagarrallydoanotattempttofixtheaddrrsofanoblig~.             Accmdin@y,wedowtdctcmim
     in this opinion whctltora child supportoblige maychange his or her addxss for pqoses of transmitting
     t&child sopportpymcnts.




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Honorable Jefiky D. Herrington - Page 2               (~~-222)




            office of the District Cl& who shag remit those payments to Mrs.
            M., for the support of Baby M.

            In 1992, the District Clerh mceived two instruments from the child
            support obligee, Mrs. M. The thst instrument is entitled “Limited
            Power of Attorney and Authorization to Release I&ormation” and
            appears to make Child Support Collections dba In the Interest of
            Childrea Inc. the ageat of Mrs. M, with the authority to collect and
            receive the child support payments due Mrs. M. The second
            ~isarequestthatallkturechildsupportpaymemsmade
            through the District Clerks O&e be sent to Child Support
            Collections. Both are notaked.

      Section 14.05(a) of the Family Code authorizes a district court, in a child custody
prowed&     to order either or both parents to, among other things, make periodic
paymmtsforthesupportofthechild”inthenwnaandtoorforthebenefitofthe
penons”thatthecouthassqsxci6cdintbcdccree.2                      SeedwU%itev.A&ock,666
 S.W.2d 222,225 (Tex. App.-Houston 114th Disk] 1984, no writ) (emphasizing that court
may order payments for support of children “to rhr per&          specified in decree). This
office previously has stated that section 14.05 of the Family Code “confers broad
disaaionuponthedistrics~ind~aminingtowhomchildsupportpaymmtswillbe
made.” Attorney Gatd        Opinion H-343 (1974) at 1. Generally, in a brocading in which
acourto~paiodicchildrupportpayrmnts,~courtmustordathrtincomebe
withheld from the obliger’s eamings and that a court registry, a child support collection
office, or tbe attomey gewral initially receive the payment. Fam. Code $8 14.05(e),
 14.43(c). The initial receiver of the payment is promptly to distriite        the paymen&
presumably to a peraott designated in the court order. See id. 55 14.05(a), 14.43(c);
Rhi&?, 666 S.W.Zd at 225. Based on the language of sections 14.05(a) and 14.43(c) of
the Family Code, the court of appeals’ construction in KJt& and the statements this office
made in Attorney General Opiion H-343, we believe that no person or entity other than
the district court is authorizul to determine in the original order to whom child support
payments will be made or distributed.

         Section 14.08 of the Family Code provides the procedure by which a child support
order or that portion of a divorce decree pertaining to child support may be modiied.
Signiticantly, only the court having continuing exchtsive jmisdiction over the suit




          2we mtc that tbc 7lst Lcgihtm enactal hvo msions of sation 14.05(s). compare Act5 1989,
71~4Le& ch. 617. 5 5 with Acts 1989, 7ls1 Leg, 1st C.S., ch. 25, 0 13. While the two vcrsiom anz
similar,toih~ttbattbcLanguageoTthctwo~~~~.welrdatotbcvQsionenencd
later, tinting the legislahuek fltst called session. See Attomcy General Opiion M-497 (1%9) al 14
Oatcatoxprcaaionof kghlalure contmls ova prior ccntlictin8 Ie8isMion).



                                          p.   1162
Honorable JeEey D. Henington      - Page 3     (D&222)




affecting the parent-child relationships may, after a motion has been filed and a hearing
wnducted, mod@ the order or portion of a divorce decree that provides for child
suppott4 Fam. Code 4 14.08(a). In our opinion, the wurt’s exchtsive power to modify
the child support order encompasses the power to modii that part of the order
designating the person or persons who is ultimately to rewive. the child support payments.
The court’s exchrsive power therefore generally precludes modification of that portion of
the order designating the person who is to receive the child support payments by any other
means.’

        Generally, of course, the law favors the assignment of wntracmal rights. See 7
TEX. Jm. 3d Aarigrmterrfs $5 2,4, at 175-76. 178. However, ifan assignment would be
wntrary to public policy, the right to assign a wntmcmal provision should not be
presumed. See id. 8 4, at 178-79. In our opinion, the assignment of the right to receive
child support payments is wntraq to public policy.

         In a case such as the one you raise, a managing conservator accepts the child
support payments for the benefit of the child, not for him- or haself. See Hill v. Hill, 8 19
S.W.2d 570.572 (Tex. App.-Dallas 1991, writ denied). Child support agreements are,
therefore, structured to provide for the best interests of the child. Id. Consqucntly, a
managinB conservator may not unilaterally assign to a third party the child’s right to child
supportpayments. Instead, the managing wnservator must seek the approval of the court
with wntinuing, exclusive. jurisdiction over the child, which will consider and protect the
child’s interest in the. child support payments.




                                     p.   1163
Honorable Jefhy D. Herrington - Page 4            W-222)




                                   SUMMARY
                Unless section 14.08(h) of the Family Code applies, a district
           ciakmustp~childsupportpaymentstothepasondesignatedin
           the existing child support order or in that portion of a divorce decree
           providing for child support. Thus, a district clerk must wntinue to
           pay the obligee designated in the court order even though the obligee
           has 6led with the clerk a limited power of attorney authorizhg a
           wqoration to receive the child support payments and a request that
           the clerk send the child support payments to that corporation.




                                                       DAN      MORALES
                                                       Attorney Genarsl of Texas

WJLL PRYOR
Fkst Assistant Attorney General

MARYKELLER
Daputy Attorney General for Litigation

RENEAHlcKs
State Solicitor

MADELEINE B. JOHNSON
Chair, Opiion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney Gene-ml




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