Can I Appeal A Child Support Order?

Can I Appeal A Child Support Order?

• March 31
• Evans & Herlihy
• Family Law

If you have a child support order in Texas, you probably know that you can modify it when it becomes necessary. Circumstances change, children get older and have different needs, so the courts allow modification of a support order under certain conditions.

You may ask, “Can I appeal a child support order?” Yes, but you need legal advice. When you file an appeal for a court order, you claim that there is something wrong with the way the original order was written, or there were errors in the procedure when it was made. You are asking the court to reconsider the order itself, not merely make changes in the amount.

Before you attempt to modify or appeal a child support order, you should contact a child support attorney. At Evans & Herlihy, we have the experience needed to review your case and explain the options for appealing your case. Contact us at (512) 732-2727 for an appointment.

How to Appeal a Child Support Order in Texas?

Unlike a modification, which can be made when there has been a “substantial change in circumstances” in the parent’s income or employment, an appeal must be made on procedural grounds. The plaintiff must show that the judge abused their discretion in calculating or awarding support or in some other determination of the order.

The Texas Family Code gives judges great discretion in making custody and support orders. The judge must always act in the best interests of the child when making their determination and follow the support calculation formulas in determining the payment amounts.

To show that the judge abused their discretion, you will need to prove that the judge lacked sufficient evidence to make the decision, or that the decision is not supported by law.

Procedure for Appeal

If you want to appeal the judge’s order, you must move quickly. There are two ways to request an appeal of an order during a family law case.

De novo hearing. A de novo hearing must be made within three days of receiving the order. The de novo request is limited to a specific issue (such as the amount of child support) and the associate judge hearing the case will not listen to testimony on any other matters.

The benefit of a de novo hearing is that you may have it immediately, without waiting for the final order in your case. However, you may only request one de novo hearing in a trial.

Appellate review. Whether or not you request a de novo hearing on any part of the trial, you are entitled to an appellate review following the final order. If you request a review of the final order, the judge may or may not review the entire case. Your appeal must meet these requirements:

• The Notice of Appeal must be filed within 30 days of the date of entry of the final judgment or divorce decree. The support order becomes part of the divorce decree and can be appealed at that time.
• The grounds for appeal must be part of the judicial record. Your attorney must have objected to any questions or made other legal efforts to preserve the error for the appeal.
• The brief must be timely filed and contain all supporting evidence and citations to the record and be properly served with the court and the opposing party.
• The appellate court will review the case and either dismiss it or accept it. If it is accepted, it may be remanded to the original court for a new trial.

Motion for New Trial. The appellate court will only review the evidence and testimony from your original case. If you have found new evidence or other new information that you think would help your case, you may want to file a motion for a new trial. This is a very complicated legal maneuver that should only be done with the assistance of a skillful family law attorney. To move for a new trial, you need to show that:

• The evidence would result in a different outcome.
• The evidence could not have been found before the first trial.
• It isn’t duplicative of evidence already produced.
• You had no knowledge of the evidence before, and could not have had such knowledge.
• The evidence must be otherwise admissible.

Challenging the grounds for a support order is very difficult, and unless the basis for the appeal is fraud or theft, you should think carefully before making the decision. You may be better off waiting and then filing a motion to modify your support order instead.

Modification

You are allowed to modify your support order if there has been a “substantial change” which would justify a reconsideration of the order. Some things the court will consider:

• The non-custodial parent’s income has changed due to different employment, change in hours, or increase or decrease in wages.
• The child’s living arrangements have changed, either by choice or due to schooling, change in visitation or custody, or other reasons.
• The child’s medical needs or health insurance has changed.

The court must always act in the best interests of the child but understands that life continues to happen. It is better to go to court and explain why the support order needs to be modified than to miss payments and be found in contempt for non-payment.

How We Can Help

If you are having problems with your child support order, don’t despair. The attorneys at Evans & Herlihy are here to help you resolve whatever issues you have with a minimum of stress to you, your children, and even your former spouse. We know that our clients do not want to re-litigate their divorce, but they also want their support payments to be fair for everyone.

Unlike some other types of family law cases, you do not have time to find out how to appeal a child support order in Texas. The time is limited to file your motion, so don’t wait. Call our legal team at (512) 732-2727, or make an online appointment with one of our attorneys today. We are here to help you no matter what choice you make with your support order.