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Click here for the full text of this decision FACTS:Catherine Chism and Timothy Mullen were divorced in 1982. Chism was given custody of their two children, A.M. and B.M., and Mullen was ordered to make monthly child support payments of $450 until the children were 18. In December 1985, Mullen filed a motion to modify custody, and from Dec. 15, 1985, through June 18, 1988, Chism relinquished possession of both children to Mullen. The day before the children returned to live with Chism, the trial court signed an agreed temporary order reducing Mullen’s child support to $350 per month, pending determination of the motion to modify custody. The motion to modify was not pursued, however, and the trial court dismissed it for want of prosecution, causing Mullen’s child support obligation to revert to $450 per month. On May 20, 1994, Chism again relinquished possession of the older child who thereafter reached emancipation while living with his father. The younger child continued to live with Chism during this period. On Oct. 25, 1997, the younger child turned 18, ending Mullen’s support obligation. Mullen failed to make child support payments to Chism during certain periods. The Office of the Attorney General, as the Title IV-D agency for Texas, obtained an order of assignment of all child support payments and arrearages owed to Chism, and on Nov. 17, 1998, sued Mullen to reduce the unpaid child support to judgment. In defense, Mullen asserted that Chism had voluntarily relinquished control of the children for periods exceeding of court-ordered visitation and that he was therefore entitled to an offset against the attorney general’s claim under Texas Family Code �157.008. Mullen also filed a “Cross Motion to Reduce Unpaid Child Support to Judgment,” seeking reimbursement from Chism for support he provided during the periods of excess possession. Chism did not file a written answer to Mullen’s motion, but she did appear at the trial pro se. The trial court took Chism’s failure to answer as an admission of allegations in Mullen’s cross motion. During the relevant period, the trial court found that Mullen owed $79,625 in child support and had paid $44,175, leaving a balance of $35,450. The trial court further found that Mullen was entitled to an offset of $26,100, and reimbursement for his support in the amount of $15,196.86, because of his excess possession of the children. Although these findings reflected a net amount due Mullen on his cross motion, the trial court nevertheless affirmed the judgment of the IV-D Court Child Support Master against Mullen in the amount of $2,331, concluding that it reflected “the Master’s exercise of discretion not to allow all offsets and credits, and . . . to assess no interest.” The attorney general and Mullen appealed; Chism did not. The court of appeals reversed, holding that the Attorney General lacked standing to defend Chism against Mullen’s claim, and that Chism’s failure to file a written answer required that Mullen receive the full offset and reimbursement amounts. The court of appeals concluded that after allowance for these offsets and reimbursements, Mullen should have a net recovery in the amount of $5,846.86 against Chism. The attorney general and Chism petitioned for review. HOLDING:Reversed and remanded. Texas Family Code �157.008 sets out the following conditions for asserting the defense: 1. the obligee must have voluntarily relinquished actual possession and control of the child to the obligor; 2. for a period exceeding court-ordered periods of possession and access to the child; 3. during which the obligor must have supplied actual support. If these conditions are met, the obligor “may request reimbursement for that support as a counterclaim or offset against the claim of the obligee.” Whether an obligor parent is entitled to an offset or to reimbursement will depend on whether such parent continued to pay the court-ordered support obligation during all or part of the period of excess possession. If support was paid during this period, the obligor must seek reimbursement; if it was not, the obligor must ask for an offset. In either event, �157.008′s reimbursement remedies of offset or counterclaim are alternative, not cumulative. During any particular month, the obligor may be entitled to one or the other, but not both as the court of appeals suggests. The statute is purely defensive. It does not grant the obligor an independent right to seek reimbursement for support paid during periods of excess possession, but rather provides for reimbursement “against the claim of the obligee.” The court holds that the court of appeals erred in applying the statute to shift the support obligation from the obligor to the obligee during periods of excess possession. Section 157.008 operates only as a defense to a motion to enforce an existing order, albeit a defense with two sides offset, if support has not been paid to the obligee during a period of excess possession, and affirmative reimbursement, if support has been paid. The Attorney General, as the Title IV-D agency and Chism’s assignee, is fully authorized to sue for unpaid child support and defend against any claim that might affect that collection. Therefore, the court disagrees with the court of appeals that the attorney general lacked standing in this matter. There is disagreement among the courts of appeals regarding the proof needed to measure “actual support” under �157.008. It was undisputed that Mullen solely supported his son and daughter, and later his son, during the two relevant periods of excess possession. Chism admitted as much at the hearing, testifying that she provided no support to Mullen during these periods; nor was there evidence of support from anyone else during the relevant periods. Thus, the court of appeals could reasonably presume, as it did, that during the period of excess possession Mullen was entitled to equate his monthly child support obligation to the actual support he provided each child. On this record, the court decides, nothing more was required. OPINION:Medina, J, delivered the court’s opinion. CONCURRENCE AND DISSENT:Johnson, J. “Mullen was statutorily obligated to prove the amount of support he provided in order to receive an offset or reimbursement. In my view, Mullen is entitled to offset only the amount of actual support he proved and the trial court found, subject to proper appellate review and limited as provided by statute.”

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