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Heller v. Heller

The appellant contends that the trial court erred by ordering income withholding for contractual alimony. A promise to pay contractual alimony creates nothing more than a debt, not a legal duty imposed by Texas law. The garnishment of current wages violates the Texas Constitution. The trial court's judgment is reversed and rendered. Beaumont Court of Appeals, No. 09-11-00551-CV

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OPINION

In a final divorce decree, Steven Clark Heller agreed to pay contractual alimony to Desiree Cheyenne Heller. When Steven failed to make payments, Desiree sought a wage withholding order. Steven filed a motion to stay issuance of the order. The trial court denied Steven‟s motion and entered a wage withholding order. In his sole appellate issue, Steven contends that the trial court erred by ordering income withholding for contractual alimony. We reverse the trial court‟s order of wage withholding.

The Texas Constitution provides that current wages for personal service are not subject to garnishment, except for the enforcement of court-ordered child support or spousal maintenance. Tex. Const. art. XVI, § 28. Likewise, section 8.101 of the Texas Family Code allows a trial court to order income withholding to enforce spousal maintenance. Tex. Fam. Code Ann. § 8.101 (West 2006). The Family Code allows a trial court to enter a wage withholding order to enforce either spousal maintenance or contractual alimony if the contract permits income withholding or if payments are not timely made under the contract‟s terms. Id. § 8.101(b). Whether a trial court may order income withholding for alimony payments is a question of law that we review de novo. Kee v. Kee, 307 S.W.3d 812, 813 (Tex. App.-Dallas 2010, pet. denied).

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