Sometimes, a parent may face significant changes in his or her financial circumstances that affect the ability to pay a Texas child support obligation. If the change in the parent’s financial circumstances is both substantial and material, the court may modify the obligation.
In a recently-decided case, a father sought to modify his child support obligation after he was determined to be disabled. The original support order was entered in 2006. The court entered an agreed order in 2012, ordering the father to make payments on the support he owed and increasing his monthly obligation based on his net resources.
Soon after the 2012 order was entered, the father had a stroke. The Social Security Administration (SSA) found him to be disabled and awarded him Supplemental Security Income (SSI) benefits. He moved to modify the support order on the grounds his circumstances had materially and substantially changed.
An associate judge recommended modifying the obligation to zero, and the trail court adopted that recommendation. The mother moved for a new trial, arguing the trial court abused its discretion. She also attached “newly discovered evidence,” a statement from the SSA stating the father was receiving $480.67 per month in SSI benefits, but the program did not allow his children to receive benefits. The mother’s motion was denied and she filed a request for a de novo hearing. She argued that the father was able to work and had been working. The trial court granted her motion for a new trial.
The father testified at the hearing and stated he worked for his family business when the 2012 modification was entered. He further testified that he had a stroke about two weeks later and he was unable to work or drive. He testified he had not been able to work since August 2012 and SSI was his only income. He testified that he understood he would continue to receive SSI benefits until he was able to work and he had no other financial resources.
The mother believed he still worked for his father’s auto dealership and testified she saw him showing a vehicle to a customer in 2014. She also testified he informed her he still worked sometimes to help his father after his stroke. She testified she did not have proof he continued to work or had income other than SSI benefits. She testified she thought his family could be paying him cash and that she had seen them do so when they were still together.
The court entered an order denying the father’s motion to modify and granting the mother’s request for attorney’s fees. The father appealed, arguing the court erred in denying the modification because there was a material and substantial change in his financial circumstances.
Generally, a court can modify a child support order if there has been a material and substantial change in the child or parent’s circumstances. A party appealing a child support order must show a clear abuse of discretion by the trial court. The appeals court must consider whether the trial court had sufficient information to exercise discretion and whether it erred in applying that discretion.
Under Texas law, a financial setback of the parent obligated to pay child support can be the basis of a material and substantial change in circumstances. The court must consider the party’s financial circumstances when the order was entered and their circumstances when they seek the modification. To be a material and substantial change, there must be “a marked decrease in income or steady decline without offsetting circumstances.”
When the court entered the previous modification in 2012, it found the father had net monthly resources of $1,303.56. The parties also agreed the father was employed at the family business at the time. There was undisputed evidence he later had a stroke and was found to be disabled and unable to work. The mother had submitted documentation showing the father was receiving SSI benefits.
The appeals court noted the trial court could consider the father’s credibility, but the undisputed evidence the father had been found disabled and received SSI benefits showed there was a significant loss in his monthly resources since the previous order was entered. The appeals court found the trial court could only support a finding that there was no substantial and material change if it determined he was still working or that he was able to work.
The appeals court noted the trial court did not have to accept the father’s testimony that SSI was his only source of income, but there must be some evidentiary support for the court to find by implication that he had more resources than he claimed. There was not sufficient evidence in the record to support such a finding, however.
The appeals court also pointed out a trial court may base child support on the parent’s earning potential if there is evidence he or she is voluntarily unemployed or underemployed. The trial court must make an express finding, supported by the record, that the parent is intentionally unemployed or underemployed. Additionally, once the parent shows evidence of his or her wages, it is the other parent’s burden to show intentional unemployment or underemployment. The parent obligated to pay child support may then offer rebuttal evidence, including evidence his or her health is responsible for the employment situation.
The trial court did not make a finding of voluntary unemployment or underemployment. Furthermore, the appeals court found the record did not support a determination of voluntary unemployment or underemployment. The undisputed evidence showed the SSA determined the father was disabled as a result of a health condition and was unable to work. The mother offered only speculation that he may be working for his family business.
The appeals court found the trial court abused its discretion in denying the motion to modify the child support order and reversed and remanded the case.
If you are seeking or fighting a child support modification, an experienced Dallas child support attorney can help you fight for the best outcome. Call McClure Law Group at 214.692.8200 to discuss your case.