Texas Divorce Attorney Blog
Parents are obligated to support their minor children and cannot avoid their obligation through voluntary unemployment or underemployment. If a parent’s actual income is significantly less than what they could earn due to intentional unemployment or underemployment, the court may apply the Texas support guidelines to their earning potential. Once the obligor has provided proof of his current wages, the obligee has the burden of showing intentional unemployment or underemployment. If they do so, the burden then shifts back to the obligor for rebuttal. A father recently challenged a court’s findings that he was underemployed and that it was in the child’s best interest to apply the child support guidelines to his earning potential.
The father registered a New York child support order in Texas and moved to modify the parent-child relationship. The order required the father to pay child support of $1,437.44 and medical support of $107.03 each month. He requested a reduction to $377, retroactive to the date he petitioned to reduce his arrearages.
The mother filed a motion to enforce, seeking contempt against the father for failure to pay the support and the arrearages. The court held a hearing and confirmed $85,858.87 in child support arrearages and $8,621.66 in medical support arrearages, with offsets, resulting in a total of $89,247.93. The trial court awarded the mother attorney’s fees and costs.
The court found the father was intentionally unemployed or underemployed and received numerous gifts and benefits, including utilities and housing. The court also found applying the guidelines to the father’s earning potential instead of his actual income was in the best interest of the child. The court found he had an earning potential of $8,921.33 per month, based on his average earnings in 2015 -2017. The trial court found the father’s net monthly resources were $6,803.27. The court reduced his child support obligations to $1,360.65 and medical support to $67.17 per month.
The husband appealed, arguing the court abused its discretion in finding his actual income was significantly less because of intentional underemployment or unemployment and it was in the child’s best interest to apply the guidelines to his earning potential.
Earning Potential
The father acknowledged earning less than he had when child support was originally calculated, but argued there was no evidence in the record that he was doing so intentionally. He argued that he had tried to obtain other employment without success.
The child support order from New York stated the father had sufficient means to pay $871.49 in monthly child support and $565.95 for additional child care expenses. He was also ordered to pay $107.03 per month for health insurance. The father argued the court in New York had incorrectly included all income from his business without subtracting expenses.
The father testified he relocated to Texas to be closer to his son. He said it had not been affordable to travel back and forth. He testified he had always worked in the boat business and did not know what to do in Texas. He had earned a higher income in 2014 and 2015 from selling houses, but had since been moved to another location where he did not do as well. He testified he applied for a large number of jobs, including nearly all of the home building companies in the area, but many of them wanted college educations. The father had a GED. He testified he started a company repairing boats that had been doing well until the pandemic. He provided tax returns showing his earnings, which ranged from a high of $155,314 in 2015 to a low of $6,602 in 2018. He presented his savings account statements showing a consistent balance of $1.09, and records of a checking account with a maximum credit of slightly more than $6,000 from February 2019 to November 2021. He estimated his gross monthly income as $2,166.67 with expenses of $1,676.60.
He testified that he was the sole proprietor and employee of his business, which was not a charter business but did work for a charter company his girlfriend owned. The companies had similar names. He said his girlfriend ran all aspects of her business, but he took care of the boats. He acknowledged that her business’s LinkedIn page listed him as manager of the charter business and the business’s website had previously listed his phone number, but said it had been changed to his girlfriend’s number after a previous hearing.
The father testified his girlfriend owned the home where they lived and he did not make any payments for either rent or the mortgage. He said he did not pay utilities or contribute to the home’s maintenance.
He applied to sell boats and insurance, but had not taken the test due to the time and cost. He had thought about getting a real estate license, but could not afford it. He said no one was hiring after the pandemic.
He testified about traveling, but said his girlfriend and family had helped pay for the trips.
The mother provided evidence that arrearages started to accrue in July 2012 and had reached $87,169.24 as of July 2021. She testified he had also failed to pay the attorney’s fees she was awarded in New York.
The mother testified the father appeared to spend more than his tax returns reflected as income. She said he had previously stated he filed for bankruptcy at a prior hearing to enforce child support and he laughed and smiled when the hearing was suspended. She said he threatened to quit his job to hurt her.
The appeals court concluded there was sufficient evidence to support the finding of intentional underemployment or unemployment. The appeals court noted the trial court could have concluded the applied to a sufficient number of jobs over the time involved. He did not spend the time and money to take the test that would allow him to sell insurance. The mother testified he threated to quit his job in to make her suffer. The appeals court acknowledged that his income for 2020 could have been affected by the COVID-19 pandemic, but also pointed out he earned less income in prior years. The trial court could have determined his efforts to obtain another job were not consistent with someone trying their best to gain employment, making particular note of his traveling. The appeals court concluded there was more than a scintilla of evidence supporting the finding he was intentionally underemployed. The appeals court found no abuse of discretion in the court’s application of the support guidelines to the father’s earning potential.
Child’s Best Interest
The appeals court also concluded there was sufficient evidence supporting the finding it was in the child’s best interest to apply the support guidelines to the amount it assessed. The mother had testified that she and the child had experienced hardships as the result of the father’s arrearages. The appeals court noted that the trial court based the reduced obligation on the income the father “proved he could earn,” which was higher than the father requested. No evidence showed that a lower amount would be in the child’s best interest. The appeals court found no abuse of discretion in the best interest finding.
The appeals court affirmed the trial court’s judgment.
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