Texas Appeals Court Upholds Finding Father Was Intentionally Unemployed or Underemployed

Originally published by Kelly McClure.

If a parent in a Texas child-support case is intentionally unemployed or underemployed resulting in an income significantly less than what they could earn, the court may calculate child support based on their earning potential. Tex. Fam. Code § 154.066(a).  The other parent has the burden of showing that the parent is intentionally unemployed or underemployed.

A father recently challenged a trial court’s finding that he was intentionally unemployed or underemployed and the child-support obligation based upon that finding.

 

Prior Order Established Father’s Child-Support Obligation

In this case, a 2010 order adjudicated parentage, established custody and the parents’ rights and responsibilities, and required the father to pay $1,500 per month in child support.  The father worked as a geologist at that time.

The parties eventually got back together.  They planned to get married and move out-of-state where the father had a job offer. The father was then making about $147,000 per year and the new job would pay “a little more.”  He accepted a lump sum payout of ten months’ salary as part of a voluntary layoff program.  As it turned out, the parties did not get married; however, their second child was born in May 2015.  The father decided not to take the new job, because he did not want to move without his children.  Thereafter, he sought modification of the 2010 order to establish paternity of the second child and determine custody and child support.

Pursuant to agreed temporary orders, the father agreed to pay $2,137.50 each month for both children, based on his lump sum severance payment.  In January, he sought a decrease due to his unemployment.  The trial court denied his motion.  After he fell behind in payments, the mother moved for enforcement of his child-support obligation by contempt.  She also sought continuation of child support at its current amount, alleging the father was intentionally unemployed and underemployed.

The court signed additional agreed temporary orders reflecting certain custody and access settlements and reducing the child support obligation to $1,100.

Following a bench trial, the court found the father was “intentionally and purposefully unemployed and underemployed.” The court ordered him to pay $2,137.50 in child support each month, plus $77,244.43 for the mother’s attorney’s fees and costs.  The father appealed.

Father Argues “No Evidence” of Intentional Underemployment

The father argued there was “absolutely no evidence” supporting the court’s finding he was unemployed and underemployed and use of his “earning potential” rather than his income to calculate child support.

The father testified he contacted his former employer when they decided not to get married, but he could not get his job back.  He said he could not get a job in the oil industry until July 2017.  He earned $26,824.48 at that job in six months, but was laid off in December.  He started working for another company and earned $5,500 per month.  He presented evidence of an adjusted gross income of $232,911 in 2015 and $135,154 in 2016.

The mother testified the father could get employment similar to his previous job if he tried.  She also worked in the energy industry.  She based her opinion on her experience, government statistics, and alerts she received relating to jobs matching the father’s qualifications.  She testified she had forwarded job alerts to him until he asked her to stop.  She also pointed to his testimony at the 2015 hearing when he said he had not been looking for a job.

Court of Appeals Upholds Trial Court’s Child-Support Findings

The appeals court noted there was testimony the father had earned $147,000 per year at the job he left in 2015.  At that time, he had an offer for a job that would pay “a little more.” He had voluntarily left his job and did not accept the new offer.  The appeals court found the trial court could have used this information to determine the father’s earning potential.  It was also evidence he chose to be unemployed. The court heard evidence of the father’s education and experience. The father testified he had been vigorously searching for a job, but the mother testified she had not seen any documentation of a job search, even though she requested it in discovery.  The appeals court found the trial court concluded there had not really been a job search and accepted the mother’s testimony the father could have found comparable employment if he tried.

The mother also argued the child support order could be supported based on the father’s access to other financial resources. The father did not disclose what he paid his attorneys, despite the mother’s discovery request.  The father admitted his father gave him money, but would not say how much.  He also owned a home and quarter-acre lot.  The court could have reasonably found the father had undisclosed resources that he could use to support the children. The appeals court found no abuse of discretion in the child support determination.

The appeals court did agree with the father that the evidence was insufficient to support the reasonableness of the attorney’s fees awarded to the mother.  The appeals court remanded the case to the trial court for proceedings related to the attorney’s fees.

Child-Support Cases are Complex – Call McClure Law Group Today

In this case, the difference in income was significant and the father did not provide evidence of a job search. Slightly different facts could lead to a different result.  If you are involved in a child support dispute, the skilled Texas child support attorneys at McClure Law Group can help.  Call us at 214.692.8200 to set up a time to talk about your case.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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