Determinations of a child support obligation are determined in part by the child support guidelines of § 154.125(b) of the Texas Family Code. Simply put, the guidelines recommend child support payments be 20% of the obligor parent’s monthly net resources for one child, 25% for two children, and in increasing increments of 5% for up to 5 children. Tex. Fam. Code § 154.125(b). However, “[t]he duty to support a child is not limited to a parent’s ability to pay from current earnings but extends to his or her financial ability to pay from any and all sources that might be available," Schaban-Maurer v. Maurer-Shaban, 238 S.W.3d 815, 826 (Tex. App.—Fort Worth 2007, no pet.). In particular, “[a] parent who is qualified to obtain gainful employment cannot evade his or her support obligation by voluntarily remaining unemployed or underemployed." Id. Thus in situations where the obligor is intentionally unemployed or underemployed, § 154.066 of the Texas Family Code allows a trial court to apply the child support guidelines to the earning potential of the obligor.
Until recently, there was a split among the courts of appeals over this statute. Some appellate courts have determined that this section requires a finding that the obligor’s intent was to avoid paying or to reduce child support obligation before the guidelines could be applied to earning potential. Other courts have only considered whether or not the obligor was voluntarily unemployed or underemployed. Compare In re Z.B.P., 109 S.W.3d 772, 783 (Tex. App.—Fort Worth 2003, no pet.) (holding “for a court to find that a parent is intentionally underemployed or unemployed under section 154.066, there must be evidence the parent reduced his income for the purpose of decreasing his child support payments") with Pharo v. Trice, 711 S.W.2d 282 (Tex. App.—Dallas 1986, no writ) (not evaluating the obligor’s intentions but applying the guidelines to her earning potential because she chose to be unemployed). Earlier this year, the Supreme Court of Texas resolved this split in Iliff v. Iliff, No. 09-753 (Tex. April 15, 2011).
The Supreme Court found that though many courts embraced the standard of In re Z.B.P.—requiring evidence of an intent to avoid child support payments before § 154.066 could be applied—the lower courts “provid[ed] little or no analysis of how the particular facts of the case indicate a parent's intent to avoid child support." Iliff, No. 09-0753 at 6. For example, in Schaban-Maurer, though the court stated that it required evidence of the obligor’s intent to avoid child support payments, the court only analyzed evidence of the father’s habits of sleeping late, watching television, and playing computer games and his general dislike of working before deciding that the father was intentionally unemployed and that the guidelines should be applied to the father’s earning potential. However, laziness is “not particularly indicative of a parent's motive or intent to avoid child support obligations." Iliff, No. 09-0753 at p. 6.
In Iliff, the father was a chemical specialist and account manager and made $90,000 to $100,000 a year. Id. at p. 2. In January of 2006, he voluntary quit his job. Approximately 6 months later, the mother filed for divorce. The father had no steady employment during the divorce proceedings. He had sporadic work as a business consultant and tractor operator and earned $3,600-$4,800 a year during the pendency of the proceedings. The trial court determined that the father was intentionally unemployed or underemployed and applied § 154.066 of the Texas Family Code. The father argued that this statute could not be applied absent evidence of his intent to avoid child support payments. The Court disagreed.
The Court looked at the language of the statute, which states “[i]f the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor." Tex. Fam. Code. § 154.066. Grammatically, the adjective “intentional" modifies the phrase “unemployment or underemployment" and cannot be interpreted to modify “reduction of child support," not least of all because those words do not appear in the statute. Iliff, No. 09-0753 at p. 7-8. Additionally, “there is nothing in the statute requiring further proof of the motive or purpose behind the unemployment or underemployment," and such a requirement could not be added by the courts. Id. at p. 8.
The Court seemed to soften this blow by pointing out that § 154.066 “simply states that a trial court may apply the child support guidelines to the earning potential of the obligor"—and only when the obligor is making significantly less than he once did—and that such language “creates discretionary authority." Id. at 9 (quoting Tex. Gov’t Code § 311.016(1)). It further reminds lower courts that “in child support decisions, the paramount guiding principle…should always be the best interest of the child." Id. (internal quotation omitted). Courts should not so narrowly interpret § 154.066 and base child support on earning potential only because the obligor makes less than he once did. Id. Whether or not to apply § 154.066 must be a case-by-case determination. Id. at 10. Trial courts must keep in mind that merely receiving more child support itself is not always in the child’s best interest.See id. at 11. A trial court should consider the benefits that may come from the obligor’s career choice, e.g., a particular job may allow a parent to live closer to his family, one job may have greater flexibility or fewer hours and allow a parent to spend more time with his family, or one job may provide better health or education benefits to dependents. Id. Further, trial courts must also consider “a parent’s right to pursue his or her own happiness" and consider whether the parent is unemployed or underemployed to start their own business, to go into public service, to go back to school, or for another laudable reason. Id. at 10 and 12 (quoting In re E.A.S., 123 S.W.3d 565, 570 (Tex. App.—El Paso 2003, pet. denied)).
Though Iliff eliminated the requirement to find evidence of an intention to avoid paying child support before the guidelines are applied to an obligor’s earning potential, this requirement was not being fulfilled even among courts that avowed this interpretation. Further, the result is not as harsh as it seems, as the Court tempered its holding with reminders to consider the positive results—for both the parent and child—that may accompany an obligor’s career choice.
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