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Texas Court Finds Father Underemployed and Orders Retroactive Support

In some Texas child support cases, the court may find a party to be “intentionally underemployed.” Although child support is generally based on the party’s income and resources, the calculation may be based on earning capacity if the party is found to be intentionally underemployed or unemployed.

A father recently challenged a child support obligation in which he was found to be intentionally underemployed.  The father had petitioned for the bill of review on the grounds the child support determination had been based on an IRS tax-lien notice that contained incorrect information.  He alleged he had amended his earnings information with the IRS and asked the court to order a reasonable amount based on his true earnings. The trial court declared the child-support portion of the divorce decree void, reopened the issue of child support, and ultimately issued a new order.

After the court declared the child support void, the father filed an amended counter-petition, but did not allege any of the children had been emancipated or request a credit for amounts already paid.  The mother did not file an amended pleading.

At the beginning of the hearing, the trial court indicated it would consider an order for child support going back to the date of the divorce petition or the answer, but doubted it would go back that far. The father’s attorney stated they would object to any evidence for a retroactive order because there was no request for retroactive support in the pleadings.  The father did not object to any questions or evidence on those grounds, however.

The mother testified that the father had not paid any child support before the divorce decree was signed.  She also testified that he had not paid the amounts ordered under the divorce decree that had been held void.  There was no evidence showing he had paid any child support before the decree, and no evidence of the amounts paid after the decree.

The trial court found the father was intentionally underemployed.  It further found he was able to pay $1,000 per month from May 1, 2010 through June 30, 2015 and $800 per month from July 1, 2015 through June 30, 2016.  This new order eliminated support from July 2006 to April 2010 and reduced the monthly amounts from the order.

The father appealed, arguing the trial court erred in granting retroactive child support, denying him credit for the support already paid, finding he was intentionally underemployed, and in awarding the amount of retroactive child support it did.

The father argued that the trial court erred in awarding retroactive child support when the mother had not pleaded for it in the petition.  If an issue is not raised in the pleadings, it may be tried by express or implied consent of the parties.  The appeals court found the father failed to object to evidence relating to his pre-existing child support obligation, the number of minor children, and the dates on which he would no longer be obligated to pay support for each child.  The appeals court found this evidence did not relate to any issue other than retroactive support and the father had failed to object to it.  Although his attorney stated they would object to such evidence, there was no ruling on that statement and they did not get permission for a running objection.  The appeals court found the father had participated in the trial of the retroactive child support issue.

The father also argued that the trial court erred in finding him underemployed and relying on earning potential instead of actual earnings.  He argued his earning potential had been reduced because of a Family Violence Protective Order issued against him and because his business had been listed in the Misconduct Register.

He presented check stubs showing what he earned as a security guard for the seven months before the hearing.  He also presented tax returns for the previous three years showing annual incomes of $15,350, $13,400, and $9,900.  The wife argued that their health care business had produced income of more than $1,000,000 in 2006, 2007, and 2008.  The father testified he had earned about $23,000 during those years.

The mother testified that the father owned property that had previously generated rental income and that her children had said he had other income-producing properties.  The father testified he did not have any property income after the divorce.

There was testimony the father had two master’s degrees and a Ph.D. in higher education management.  The father admitted to having experience in teaching.  He testified, but did not offer documentary evidence, that he had sought employment in teaching.  He stated he could not get employment in education because he was in the Misconduct Register.

The appeals court found the trial court’s ruling implied that it did not believe the father’s testimony regarding his ability to find more gainful employment.  The appeals court noted the father had claimed tax credit for the children in 2014 and 2015, despite the fact the children lived with their mother and the divorce decree gave the mother the right to claim the credit.  The father admitted the statement in the tax filings were false.  The appeals court found there was sufficient evidence to support the trial court’s finding the father was intentionally underemployed.

The father also argued the trial court erred in ordering him to pay $1,000 per month in retroactive child support.  By ordering that amount, the trial court impliedly found his monthly resources were $2,857.  The father argued there was no evidence that he had those monthly resources.  Because the trial court found he was intentionally underemployed, it could have based the calculation on earning capacity instead of actual earnings.  Additionally, based on the evidence, the trial court could have reasonably concluded the father had undisclosed financial resources.  The appeals court found that the trial court could have reasonably found that the father’s earning potential was $2,857 based on the evidence.  The appeals court found no abuse of discretion on this issue.

The father also argued the trial court abused its discretion in failing to give him credit for past support.  He did not offer any evidence of past payments until after the trial.  He did not request a credit in his pleadings and the issue was not tried by consent.  When the father did attempt to offer evidence that he had paid support, the mother’s attorney promptly objected.  The mother testified the father had paid some support, but there was no evidence or stipulation as to the amount.  The appeals court noted there must be evidence of the amount paid.  The father had submitted some evidence of past payments in his supplemental motion for judgment, but that was submitted more than 30 days after the final order and the motion was not granted.  The appeals court found the trial court did not abuse its discretion in failing to give credit for past child support.

The appeals court affirmed the trial court’s final order.

If you are dealing with a child support issue, an experienced Texas family law attorney can help protect you.  Call McClure Law Group at 214.692.8200 to schedule a consultation.

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Erroneous Calculation of Texas Child Support Award

Retroactive Child Support in Texas