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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

November 5, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Oh irony of ironies! The State of Texas is attempting to avoid paying child support. That’s right, the Lone Star State, when confronted with paying a whopping child support debt is balking. In so doing, it’s making legal arguments no father could ever make and be taken seriously. Read about it here (Houston Chronicle, 11/3/15).

So how did the state come to owe child support? After all, it’s hard to imagine how a state — nothing more than a mere legal entity - could find itself on the hook for the support of a flesh-and-blood child. But that may be what’s happening in the case of Steven Phillips, a Dallas man who, back in the 1970s, was convicted of a series of sexual offenses he never committed.

Phillips was sentenced to 180 years in prison while the real culprit walked around free. Moreover, Phillips served over 25 ½ years of that sentence before DNA evidence exonerated him. He was released in 1996 and filed for compensation under the Timothy Cole Act, under which the state pays roughly $80,000 per year of time served for those found actually innocent of crimes for which they were incarcerated. So Phillips is entitled to something like $2 million in compensation.

But that’s not all. He’s also entitled to recoup whatever expenses he incurred as a result of his wrongful incarceration.

Enter his ex-wife, from whom he was divorced and who had custody of their child. While Phillips was in prison, an Arkansas court gave her an award of custody and child support which, naturally, he couldn’t pay. Interest and fees built up over the years until the total tab came to some $334,000. The ex wants to get paid and Phillips’ lawyer says the state must do so as part of its obligation to pay expenses occasioned by his wrongful imprisonment.

So yes, the State of Texas may be on the hook for the support of a child, a position it finds not at all to its liking.

Because [Phillips] officially was exonerated by DNA tests, taxpayers were on the hook for writing the check, since it was part of the expenses he incurred while he was wrongfully held in a Texas prison for a string of Dallas sexual assaults committed by another man.

On Tuesday, in a case being closely watched by criminal justice experts for its possible impact on future awards, the Texas Supreme Court heard arguments on whether the state should have to pay the full amount -- or as little as $18,500…

"The Timothy Cole Act provides that the Comptroller pay what is owed," said Phillip's attorney Matthew Wymer of San Antonio. And if the court does not agree, Phillips will have to pay the difference…

In 2009, he sought compensation under the Cole Act. Then-Comptroller Susan Combs approved his claim for wrongful imprisonment, but refused to pay the child support amid questions over how much was owed under a divorce decree with his ex-wife in Arkansas…

Combs balked at writing a check, arguing that the amount was inflated by an interest rate that was too high and because Phillips' prison-time calculation was wrong.

Instead, she insisted he was owed just $18,593.

Don’t you love it? “The amount was inflated by an interest rate that was too high…” How many non-custodial parents would like to make that argument in court and be taken seriously? The only way the irony in this case could be any richer would be if the divorce decree had been entered by a Texas court. As it is, the state’s Comptroller General is arguing about a decree from a foreign jurisdiction. Imagine her position if she had to argue that it was the State of Texas whose interest rate on unpaid child support were excessive.

Still, the spectacle of a state that charges 5% per annum on child support arrears and that, until recently, charged an astonishing twice that, whining about the amount of interest tacked on to a child support bill that the dad had no way of paying gives new meaning to the word chutzpah.

To be honest, I think Phillips owes the child support and the State of Texas owes the interest and fees. His incarceration didn’t cause him to owe the support; he owed that in any case, free or in prison. But clearly the state must pay whatever interest on that amount is owing as well as attorney fees incurred in collecting it. As I said, irony of ironies.

Now, there are a couple of items the Chronicle article didn’t mention. The first is that the very idea that child support arrears accrue during a non-custodial parent’s incarceration is based solely on the flawed idea that, in some way, the criminal intended to go to prison when he committed whatever crime that put him there. Needless to say, few criminals commit their offenses with the idea of getting caught and doing time, but states are so hell-bent on exacting their pound of flesh that they indulge in the legal fiction that they do.

We may be able to argue that point, but not that Phillips should be held responsible in family court for crimes he didn’t commit. I can’t imagine any lawyer — even those hired by the State of Texas - making that argument.

The second point the Chronicle failed to mention is that this “child support” is clearly nothing of the kind. It’s Mom support. Obviously, Phillips’ child was conceived prior to his incarceration in 1971. Just as obviously, the child is now an adult and was for at least some of the time he spent behind bars. So, if the amount owed is actually for the support of the child, it should go to Phillips’ son or daughter, not his ex.

Indeed, I’d argue that it all should go to the now-adult child. That’s because the mother presumably supported the child when he/she was growing up. She did so in a manner that befitted her income. If she’d had Phillips’ money, perhaps the child’s standard of living would have been marginally better, but she didn’t through no fault of his. In short, the child was supported then by its mother, so whatever support Phillips pays now should be to his son or daughter. Paying the money to the mother clearly has nothing to do with supporting a “child” who has long been out of the mother’s home and no longer her legal responsibility.

But that won’t happen. With his $80,000 per year from the state, he’s paying his ex at the rate of $5,500 per month, leaving him about $1,100 per month to live on.

Gee, where have we heard that — a non-custodial parent all but bankrupted by child support - before?

Thanks to Mike for the heads-up.

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

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#childsupport, #StateofTexas, #wrongfulconviction

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