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).