To Show Intentional Underemployment for Purposes of Calculating Child Support, Must Show Intent, Not Just Reduction of Income

Facts: Trial court found Father’s monthly net resources were $4,779.90 in 2006, and $3,393.40 in 2007. Trial court further found Father obligated to support 2 children, one before the court and another from a previous marriage. Divorce decree shows family code guidelines direct child support payments of $593.77/month based upon Father’s 2007 monthly net resources. Trial court, however, found that “testimony shows that the obligor [Father] was voluntarily underemployed during 2007” and set child support payments at $825/month.

Held: Affirmed final decree of divorce as modified.

Opinion: To begin the voluntary underemployment analysis, trial court contemplates obligor’s proof of cur-rent wages. Once obligor’s wages are established, burden shifts to obligee to demonstrate obligor’s intent to decrease income for purpose of reducing child support payments. Evidence of intent, such as circumstances of obligor’s education, economic adversities, business reversals, business background, and earning potential, gives rise to an inference of voluntary  underemployment. These factors, however, are not exhaustive.

Father’s employer stated that by agreement Father set his own schedule and did not work every day. Employ-er further testified that he assigned Father’s projects, and Father received a 40% commission from the profits.

Employer told trial court that Father earned $62,730 in 2005, $76,900 in 2006, & $54,300 in 2007. When asked about the earnings decline between 2006 and 2007, Employer indicated that he reduced Father’s work-load based on Father’s emotional state and that his business decreased overall because of adverse economic conditions. Employer testified Father did not ask for a reduction of his workload, and that he subsequently asked Employer to increase it. Father told trial court that in 2007 his income decreased more than the income of the business overall because Employer would assign more work in the downturn to those employees with lower commission percentages. There is no evidence to the contrary.

Mother had the burden at trial to present evidence of underemployment as a specific basis for departing from child support guidelines applied to Father’s 2007 income. Such evidence must be of a “substantive and proba-tive character” giving rise to an inference of intentional underemployment. She did not meet this burden. Therefore, final decree of divorce modified in part by substituting $593.77 for $825 as the amount of Father’s monthly CS obligation.

Comment: Given current economic conditions, in our practices we are likely to be on one side or the other of a situation in which the child support obligor loses their job or suffers a decrease in income. Naturally, the obligor is going to want to reduce their child support payments accordingly. It is also likely the obligee is going to be unhappy that there is less money coming in. Although the obligee might be unhappy and might be used to higher child support payments, in this economy, decreased income for many is a reality, and, as this opinion illustrates, does not form the basis for a claim of intentional underemployment. The moral of this case – you have to show some intent to prevail on a claim of intentional underemployment. M.M.O.

In re J.G.L., ___ S.W.3d ___, 2009 WL 2648401 (Tex. App. – Dallas 2009, no pet. h.) (08/28/09).

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.