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Retroactive Child Support in Texas

childIn the Texas appellate case of In re Aer, a father appealed a divorce decree in connection with an award of retroactive child support and the distribution of marital property. The mother and father sued for divorce. The court held a bench trial and appointed the couple joint managing conservators of the children. The mother was the parent with the exclusive right to designate the children’s primary address. She was also awarded over $50,000 in retroactive child support, attorneys’ fees, and 80% of the marital estate (according to the father).

The father appealed, claiming that the evidence for the child support award and property distribution was legally and factually insufficient. The appellate court explained that it would consider whether the trial court had enough evidence upon which to use its discretion and whether it had made a mistake in applying its discretion. It further explained that a trial court has broad discretion to award attorneys’ fees under Texas Family Code § 106.002. The mother’s attorney had provided testimony regarding his fees and claimed that the high fees were driven by the father’s conduct in not answering timely discovery and dumping unorganized documents on him. The court found there was no abuse of discretion in awarding $130,000 in fees to the mother.

The father also argued that the mother didn’t have pleadings to support her request for retroactive child support. The mother’s attorney had asked during closing arguments that child support be paid retroactively to June 2012, due to the father’s intentional unemployment or underemployment during that period. However, the father had not objected at trial to either the closing arguments or the mother’s request to include an order to pay retroactive child support, nor did he object at the time the trial court signed the divorce decree, including retroactive child support. The court concluded these complaints weren’t preserved for review.

The father also argued that the order was improper because he was asked to pay this support in temporary orders in the form of the cost of religious activities. Under Texas Family Code § 154.009(a), the court cannot order a parent to pay retroactive child support when a parent was previously ordered to pay child support. The court explained that child support is to provide necessities for a child as guided by his or her best interests. In the temporary orders, the trial court had deleted references to child support and stated that there would be no child support in addition to medical support. The appellate court concluded there was no child support included in the temporary orders, which meant the trial court wasn’t barred from ordering retroactive support.

The father also claimed that during the period for which support was awarded, both parents were receiving monthly payments of over $11,000, in addition to a lump sum, based on his company buyout. The mother received the same amount of money that he did. Therefore, he felt the child support guidelines were unjust. The appellate court explained that the lower court had ordered retroactive child support of $2,137.50 each month, based on the father’s monthly resources of $8,550. The lower court had found he was intentionally unemployed, despite claiming that he couldn’t work in some other field during this time due to a non-compete, and that he was making close to $12,000 a month. The mother had primary custody of the children and had no financial assistance as child support.

The appellate court explained that a parent has a financial duty to provide support for his offspring when the other spouse has primary custody. It also found that the division of property was not so unjust as to constitute an abuse of discretion, given the disparity between their separate estates and earning potential, the mother being out of the workforce, and the father not having been ordered to pay prospective child support. The appellate court affirmed the lower court’s judgment.

If your divorce involves matters related to child support, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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