X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision The Family Code mandates that in determining whether application of the guidelines would be unjust or inappropriate, the court shall consider any financial resources available for the support of the child. A clear reading of the statute indicates “financial resources” is not synonymous with “net resources.” The trial court as the sole judge of the credibility and demeanor of the witnesses, may well have considered that Kevin had other undisclosed financial resources. FACTS:Kevin and Rebecca Scott were divorced in the mid-1990s, and in February 1999, the trial court modified Kevin’s child support obligation to $750 per month. The following year the support was increased to $874 per month. Kevin lost his job with Texas Instruments in April 2001, but he received severance pay for the next six months. He then petitioned to reduce his child support payments. The trial court held a bench trial where it was revealed that Kevin had a degree in computer science. After being laid off, he sought jobs around the country and sent out upwards of 2,000 applications that generated only two requests for interviews. One of those jobs was as a technician in the San Angelo Independent School District at a rate between $40,000 and $45,000 per year. Rebecca told Kevin that her father would offer him a job, too, at a minimum of about $45,000 per year, though the job required extensive travel out of state. Kevin never contacted Rebecca’s father and instead took a job as a part-time teacher for the Sherman Independent School District for $14,000 per year. After deducting medical insurance, he took home $950 per month. He also began taking courses toward a teacher certification. Though it agreed to a reduction in his child support payments, the court reduced the amount only to $728 per month. On appeal, Kevin challenges the legal and factual sufficiency of the evidence, and he says the trial court abused its discretion. He says the trial court found he was intentionally underemployed. HOLDING:Affirmed. The court notes that there is no filed finding of fact that supports Kevin’s assertion that the trial court found he was intentionally underemployed. Though the trial court judge made an oral statement that supports that interpretation, the court states that it cannot accept oral comments as findings of fact. Looking then to determine whether the evidence supports the trial court’s ruling, the court confirms that a parent may be found to be intentionally underemployed where there is evidence to show the parent intentionally reduced his or her income for the purpose of reducing a child support obligation. Intent can be inferred from the person’s education, economic adversities, business reversals, business background and earning potential. Here, Kevin admitted that he had not applied for any other part-time positions to supplement his income; that he was capable of working 40 hours per week; and that he was capable of earning at least $13.50 per hour. He did not offer an explanation as to why he did not contact Rebecca’s father. Rebecca also presented evidence that Kevin’s income was much higher that he claimed it to be when he first lost his job because he benefited from a profit-sharing plan, reimbursement for educational re-training and accrued vacation leave. Furthermore, he had stock dividends and a 401K plan, plus his current wife’s salary. The court notes Kevin and his wife bought a new car and paid $2,000 for a family ski vacation the same year he claimed he sought to reduce his child support payments. The court reiterates that under Family Code �154.123(b), a trial court can consider a whole range of factors when setting child support, including “any financial resources available for the support of the child.” As such, the trial court did not abuse its discretion. OPINION:McClure, J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.