Opinion
No. 01-06-00634-CV
Opinion issued December 20, 2007.
On Appeal from the 309th District Court Harris County, Texas, Trial Court Cause No. 2002-47785A.
Panel consists of Justices TAFT, HANKS, and HIGLEY.
OPINION
Michael McLane appeals the trial court's decision modifying his child support payments. In two issues, Michael complains of the trial court's refusal to retroactively award a decrease of child support and its finding that he was intentionally underemployed. We affirm.
Should Michael construe his brief to assert additional issues, we hold that the additional points were improperly briefed. See TEX. R. APP. P. 38.1.
Background
In July 2003, after 10 years of marriage, Michael and Sandra McLane divorced. As agreed upon, Sandra was awarded primary custody of SMM, their adopted son who was born on September 11, 1996. Michael, who is a licensed attorney, agreed to pay $800 each month in child support. Less than four months later, Michael filed a variety of motions that, among other things, sought a reduction in his child support payments.
The cause of action for modification of child support was severed from the other causes of action.
Two years later, there was a one-day bench trial on Michael's claims for a reduction in child support, and, on December 10, 2005, the associate judge issued the following report:
Modification granted. [Child support] reduced to $628.55/mo [beginning] December 15, 2005. [Michael] is underemployed. [Michael's] request for retroactive reduction is denied. [Michael] has an earning capacity of at least $48,000/yr as a wage earner.
Michael appealed the intentional-underemployment ruling to the referring court, and, on May 5, 2006, the presiding judge affirmed the associate judge's report. The trial court filed the following Findings of Fact and Conclusions of Law:
Michael did not appeal to the trial court the associate judge's denial of his request for a retroactive decrease in child support. This does not, however, waive his right to challenge it now. See TEX. FAM. CODE ANN. § 201.016 (a) (Vernon Supp. 2007) ("failure to requesta de novo hearing before the referring court . . . does not deprive the party of the right to appeal to or request other relief from a court of appeals or the supreme court.")
FINDINGS OF FACT
The court finds that Michael McLane is intentionally underemployed and has an earning capacity of at least $48,000.00 a year. The application of the guidelines to gross resources of $48,000.00 a year provides a child support award of $628.55 per month.
Michael McLane graduated from South Texas College of Law in 1995, was licensed to practice law in Texas in 1996, is licensed to practice in the US District Court, Southern District of Texas, has practiced law over nine years and has been licensed, has received training or has worked as a realtor, insurance salesman, financial planner and social worker.
CONCLUSION OF LAW
Guideline support is presumed to be reasonable and in the best interest of the child.
A court may apply the support guidelines to the earning potential of the obligor.
The trial court filed additional findings as follows:
FINDINGS REQUIRED BY SECTION 154.130 OF TEXAS FAMILY CODE
The application of the guidelines to the earning potential of the obligor is not unjust or inappropriate.
The monthly net resources of the obligor's earning potential per month are $3,142.75.
The monthly net resources of the obligee per month are minimal.
The percentage applied to the obligor's potential net resources for child support by the actual order rendered by the court is 20%.
The amount of child support if the percentage guidelines are applied to the obligor's net resources is $628.55.
Michael appeals the trial court's decision.
On October 26, 2007, the trial court conducted a hearing to give the amicus an opportunity to update the court on the status of SMM's mental and physical health. During the hearing, the trial court made the following statements:
Well, the Court has told [Michael and Sandra] on numerous occasions. If it could undo an adoption, that adoption would be undone so quickly. I've actually done research to see what authority I have to undo an adoption. Unfortunately, I have none. I think it's tragic that this child was adopted.
. . .
Then I'm going to remind you once again the tragedy of this child and what you-all are doing. I begged you, begged you to try to do the right thing for this child, to put your own selfish needs, you know, put them aside and try real hard to work for this child. I've actually — I beg you again and again, I think it's a tragedy that you-all adopted this child, tragic for his life, but I can't undo that.
And you have, I think, a legal obligation, a moral obligation, you're going to have to answer to a Judge far more significant than me at the end of your life on how you treated this child entrusted in your care. And that Judge has far more powers than I have.
A caseworker from Child Protective Services ("CPS"), Emerald Ealy, testified that, in the past year, CPS has conducted between 15 — 20 investigations relating to SMM. She has seen no evidence of physical abuse, but SMM says that his father is abusing him, and she does not believe that SMM is making false allegations. Ealy testified that SMM is emotionally traumatized with so much "back and forth" between his parents, and she recommended that he be removed from their homes until the conflict between the parents is resolved. The trial court, sua sponte, awarded CPS temporary managing conservator ship of SMM.
Retroactive Award
In his first issue, Michael asserts that the trial court erred in denying his request for a retroactive decrease in child support.
Standard of Review
While section 156.401 empowers the trial court to modify support orders retroactively, the application of the provision is not mandatory, but, rather, is left to the broad discretion of the trial court. Nordstrom v. Nordstrom, 965 S.W.2d 575, 582 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). It is imperative that the trial court have broad discretion to decide whether all of the facts and circumstances necessitate and justify a retroactive award of support. Id.
The trial court found that Michael's request for the retroactive modification was unsupported by the evidence. The court had before it one day of testimony from numerous witnesses and several exhibits detailing the circumstances of the parties. Michael does not identify how the trial court abused its discretion with respect to the request for retroactive modification. Sandra testified, however, that Michael chose not to pursue a ruling on his motion to modify his child support for more than two years in hopes of being awarded a lump sum of more than $10,000 in retoactive child support, which he would use to pay his back taxes. To justify such an award, the evidence must directly support a retroactive modification. Id. We hold that it does not.
We overrule Michael's first issue.
Intentional Underemployment
In his second issue, Michael contends that the trial court erred in finding he was intentionally underemployed because (1) there was no evidence of acts to avoid the responsibility to pay child support, (2) the income after the divorce has not decreased, and (3) there were no findings of fact or conclusions of law. On appeal, Michael does not contest the earning potential amount assessed by the trial court. He concedes that, if we determine that he is intentionally underemployed, he "will accept the $48,000.00 ruling of the trial court."
Standard of Review
A trial court may modify a child support order if the circumstances have "materially and substantially changed." TEX. FAM. CODE ANN. § 156.401 (Vernon Supp. 2007). The primary consideration is the best interest of the child. Id. § 156.402(b) (Vernon 2002). The court retains broad discretion in modifying a prior support order. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); McGuire v. McGuire, 4 S.W.3d 382, 387 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
Neither party addresses the need for a material and substantial change incircumstances to support a modification; therefore, we will not discuss this element.
The Law
Chapter 154 of the Texas Family Code establishes a multiple-step process for determining the amount of child support. The trial court must first determine the parties' gross income, net income, and monthly net resources. Each party is required to furnish information sufficient to identify the party's net resources and ability to pay support, such as production of copies of income tax returns, financial statements, and pay stubs. After determining the amount of net resources, the trial court must decide whether to apply the child support guidelines or whether their application would be unjust or inappropriate. See TEX. FAM. CODE ANN. §§ 154.001-.309 (Vernon 2002 Supp. 2007). Importantly, a parent's child support obligation is not limited to that parent's ability to pay from current earnings; rather it extends to his or her financial ability to pay from any and all available sources. See In re Striegler, 915 S.W.2d 629, 638 (Tex.App.-Amarillo 1996, writ denied).
Further, a trial court may order a parent to pay child support beyond the amount the parent's income would ordinarily indicate under the guidelines if the parent could potentially earn more money but has intentionally chosen not to. See TEX. FAM. CODE ANN. § 154.066 (Vernon 2002) (intentional underemployment or unemployment). If the obligor's actual income is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the obligor's earning potential. Id. "A parent who is qualified to obtain gainful employment cannot evade his support obligation by voluntarily remaining unemployed or underemployed." Tenery v. Tenery, 955 S.W.2d 337, 340 (Tex.App.-San Antonio 1997, no writ). In order to find a parent intentionally underemployed, the evidence must show that the parent reduced his income for the purpose of decreasing his child support payments. In re P.J.H., 25 S.W.3d 402, 405 (Tex.App.-Fort Worth 2000, no pet.). The requisite intent may be inferred from such circumstances as the parent's education, economic adversities, business reversals, business background, and earning potential. In re Davis, 30 S.W.3d 609, 617 (Tex.App.-Texarkana 2000, no pet.); In re P.J.H., 25 S.W.3d at 406. At the same time, the court must keep in mind a parent's right to pursue his or her own happiness. Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex.App.-Corpus Christi 2002, no pet.); DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.). Once the obligor has offered proof of his current wages, the obligee bears the burden of demonstrating that the obligor is intentionally underemployed. Zorilla, 83 S.W.3d at 253; DuBois, 956 S.W.2d at 610. Intentional underemployment has been construed to mean a "voluntary choice by the obligor." In re D.S., 76 S.W.3d 512, 520 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Baucom v. Crews, 819 S.W.2d 628, 633 (Tex.App.-Waco 1991, no writ) (affirming modification based on trial court's finding that obligor voluntarily became underemployed).
Analysis
Both Michael and Sandra testified at the original hearing before the associate judge and in the appeal to the referring court. The trial court had access to the record of the first proceeding, in which Michael sought a reduction from his agreed-upon $800/month support down to $303.77/month. He argued that the guidelines provide that, based on his annual income, his monthly support obligation should have been $297.83 for 2003, $342.33 for 2004, and $271.15 for 2005, with an average of $303.77.
Michael testified that he has been self-employed for more than nine years, and he has chosen to "remain self-employed rather than be controlled by someone else's morals." He explained that he has been unable to grow his business because (1) he has had to spend a lot of time defending "false claims of child abuse," (2) the cost of gas has forced him to forgo cases in remote counties, and (3) he prefers to be available to attend SMM's school events. He testified that he has gotten two jobs in the last few years — one at Astroworld, which ended when the park closed in September 2005, and one with a law firm, where he was making $25/hour. One month after he started that job, he claimed that, "in the chaos following Hurricane Rita he was terminated against his will and he continued working for himself since then." Michael testified that he did not have the income necessary to pay the existing child support and paying his support obligations has required him to forgo paying some of his creditors, and he could no longer tithe to his church. He had even applied for food stamps.
Michael also presented evidence from two of his clients, Tanya Stafford and Linda Kelly, in an attempt to establish that Sandra was hindering his efforts to develop his practice. Stafford and Kelly both testified that they had received angry telephone calls from Sandra. Stafford identified herself to Sandra as one of Michael's clients, and Sandra explained that she was calling numbers from a telephone bill that had been sent to her. Sandra did not call back. Kelly testified that she had known Michael for years and had socialized with Michael and Sandra when they were a couple. She said that she had received a call from Sandra during which Sandra "bad mouthed" Michael and remarked that he was an incompetent lawyer. In response to this testimony, Sandra explained to the court that she did not know that Kelly was Michael's client. She stated that she was calling Kelly as a friend to let her know not to send a joint Christmas card to the McLanes. Kelly acknowledged, at trial, that she did not tell Sandra that she was Michael's client. Sandra did not call again.
Ralph Rieger, Michael's accountant, testified that he reviewed Michael's financial statements and determined that Michael owed more than $10,000 in back taxes for 2003 and 2004. He created a "trend analysis" showing that Michael's current income was "right in line" with his average income.
Sandra testified that it would not be in SMM's best interest for her to hurt Michael's practice. She said that Michael does not see the money as "child support;" he considers it "extra income" for her. She noted that, in November 2002, Michael agreed to pay $750/month in child support, and then in June 2003, he agreed to pay $800/month.
The trial court in this case was free to believe or disbelieve Michael's evidence. See McGuire, 4 S.W.3d at 387. Michael does not contest the trial court's finding that he "graduated from South Texas College of Law in 1995, was licensed to practice law in Texas in 1996, is licensed to practice in the US District Court, Southern District of Texas, has practiced law over nine years and has been licensed, has received training or has worked as a realtor, insurance salesman, financial planner and social worker." Because the trial court had knowledge of the case from the time of the divorce until the modification hearing, it was in a better position than this Court to consider and weigh the evidence. Id. Thus, the trial court did not abuse its discretion in finding that Michael was intentionally underemployed.
We overrule issue two.
Conclusion
We affirm the trial court's modification order.