Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:On February 18, 2002, the trial court signed the final divorce decree for Barbara and John Deltuva, ordering John to pay $1,800 per month in child support for the couple’s three children. The amount of John’s child support obligation was based on the jury’s finding John was capable of earning $125,000 per year. John owned an optical business for 23 years during the marriage. Following the divorce, however, John failed to timely make all ordered child support payments and, on July 1, 2003, was held in contempt of court and confined in the Collin County Jail until Feb. 12, 2004. After his release, John failed to return the optical business to profitability and closed the business in October 2004. John then moved to his mother’s apartment in a retirement community but did not pay his mother rent. John was still living with his mother in November 2005. John was unemployed until May 2005, when he began working at a Vision City optical shop making $14 an hour. In July 2005, the trial court signed a judgment setting a payment schedule of approximately $350 per month for Father’s child support arrearage of $45,300 and spousal maintenance arrearage. Authorities indicted John for criminal nonsupport due to his failure to pay child support. On July 26, 2005, the trial court found John guilty of the offense and sentenced him to two years’ confinement probated for five years. John was ordered as a condition of probation to immediately pay $5,000 of the back child support to the Child Support Disbursement Unit. John timely made the ordered payment. John failed to return to work at Vision City following the criminal trial. John testified he had a nervous breakdown following the criminal proceedings, but he also stated on cross-examination that his income from Vision City was insufficient to make the ordered child support payments and the payments on the arrearages. John denied he was intentionally unemployed in order to avoid paying child support. John testified that his bankruptcy and felony conviction made it impossible for him to pass a background check in order to obtain employment. John appealed, contending that the trial court erred in requiring him to pay a fixed amount of child support regardless of the number of children he was supporting. The 5th Court of Dallas agreed and remanded the child support issue to the trial court to provide for a reduction in child support in accordance with the child support guidelines as John’s obligation to support each child terminated. The 5th Court ruled against John on his contention the trial court abused its discretion in setting the amount of John’s child support obligation based on the jury’s finding that John was capable of earning $125,000 per year. John filed a petition to modify after remand seeking to reduce his child support obligation. On Nov. 10, 2004, the trial court entered an interlocutory order that reduced John’s child support obligation to $1,500 per month once he was no longer required to support one child and to $1,200 per month after he was no longer obligated to support a second child. The trial court also found that the incarceration from July 1, 2003, through Feb. 12, 2004 was a material and substantial change of circumstances since the rendition of the divorce decree. Because John was not capable of paying the ordered child support during his incarceration, the trial court reduced John’s child support obligation to $300 per month for the period of incarceration. In a final order also entered on Nov. 10, 2004, the trial court denied John’s petition, except as set out in the interlocutory order, and ordered that the interlocutory order would remain in full force and effect. On Aug. 4, 2005, John filed the petition to modify the parent-child relationship, again seeking to reduce the amount of John’s child support obligation. At the Nov. 15, 2005, hearing on the petition, John contended his unemployment constituted a material and substantial change in his circumstances justifying a reduction in his child support obligation. HOLDING:Affirmed. On appeal, a party may not enlarge a ground of error or an argument to include a claim not raised before the trial court. Accordingly, the court stated that John could not now rely on any alleged material and substantial change in his circumstances between the date of the divorce decree and the date of the requested modification. Instead, the court considered whether John established a material and substantial change in circumstances between Nov. 10, 2004, the date of the previous modification, and Nov. 15, 2005, the date of the hearing on the current modification request. In November 2004, the court stated, John had closed his optical dispensing business and was unemployed. In November 2005, John abandoned his job with Vision City and was unemployed. The court found that the trial court did not abuse its discretion in finding there had been no material and substantial change in John’s circumstances. John also contended that the trial court abused its discretion in denying the petition to modify based on a finding John was intentionally unemployed. John argued that no evidence supported a finding that he reduced his income for purposes of avoiding paying child support and no evidence supported the trial court’s finding that his earning potential was sufficient to calculate John’s net resources at $6,000 per month. Noting that there was no evidence Vision City would have terminated John’s employment due to the criminal conviction, the court found that the trial court could have reasonably concluded that John failed to establish he was no longer intentionally unemployed. The court also noted that John failed to liquidate property from his optical practice kept in a storage unit and that John’s mother paid thousands in legal fees for John. John’s duty to pay support, the court stated, is not limited to his ability to pay from current earnings but also extends to his ability to pay from any and all sources that might be available. After reviewing the entire record, the court found that the trial court did not abuse its discretion in finding John failed to carry his burden to prove a material and substantial change in his circumstances. OPINION:Thomas, C.J.; Thomas, C.J., and Lang and Mazzant, JJ.

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

Benefits of a Digital Membership:

  • Free access to 1 article* 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 © 2021 ALM Media Properties, LLC. All Rights Reserved.