Parent Seeking Child Support Modification in Texas Must Present Evidence of Historical Income and Resources

When a parent seeks to modify a Texas child support order on the basis of a material and substantial change in financial circumstances, they must prove that such a change occurred.  Doing so requires evidence of the parties’ current income and resources, but it also requires evidence of their income and resources at the time of the previous order.

In a recent case, a father challenged a court’s denial of his petition for modification.  The parents divorced in 2012 and signed an Agreed Final Decree of divorce.  The mother was given the exclusive right to designate their primary residence, but the possession schedule gave each parent possession 50% of the time.

Under the decree, the father was required to pay $1,047.95 in child support each month.  The decree stated it was in accordance with the guidelines in the Texas Family Code, based on the father’s monthly net resources of $4,191.81.

The father petitioned to modify child support in June 2018.  He testified he was earning $50,000 – $55,000 per year at the time of the divorce, but he had transitioned to working in real estate.  He said he was building clientele and was not earning any income.  However, he told the court he was relying on his teaching and coaching salary in 2018 for purposes of determining whether there should be a modification. The paycheck he introduced, from August 2018, showed gross monthly pay of $5,736.66 and net of $4,716.26.  He also introduced the mother’s September 2018 pay statement, showing a gross monthly income of $7,081.26 and net of $4,834.22.  He argued that, under the child support guidelines, the mother would actually be required to pay him more than he would be required to pay her.  He asked the court to eliminate his child support obligation and order her to pay the difference.  He also asked that she be required to pay 100% of their health insurance costs, which had previously been split.

The mother testified she had been paying all of the children’s un-reimbursed medical expenses since the divorce.  She said she stopped asking the father to pay his half because it was always an argument.  She said she had paid $4,884 for orthodontics for one of the kids.  She also testified about other school and activity expenses she had paid and submitted a document summarizing them. She testified they totaled $8,837 a year.

The trial court acknowledged the ongoing expenses paid by the mother and denied the modification.  In its findings of fact and conclusions of law, the court found the mother’s 2017 income was $72,585.  The court also found, however, that there was no information about her income in 2012 in the record.  The trial court found her financial resources had been immaterial to the initial child support determination.  The court also found the only material or substantial change in circumstances had been an increase in the father’s monthly income.

The father appealed, arguing the trial court abused its discretion in finding no material and substantial change in circumstances.  He claimed the mother’s income had been less than his at the time of the divorce, but when he petitioned for the modification, she earned more than he did. He argued her income in 2018 was higher than the amount the court found to be her 2017 income.  He claimed her 2018 gross monthly income was $8,557, which was more than his $5,736.

The appeals court found, however, that even if the income was what the father claimed, he had not shown an abuse of discretion when the court denied his petition.  The parent seeking to modify child support has the burden of showing, by the preponderance of the evidence, that there has been a material and substantial change in circumstances.  To do so, the parent must present evidence of historical as well as current financial circumstances.  Without historical data, there is no way for the court to compare and determine that a change has occurred.

In this case, both the trial court and appeals court found that the divorce decree did not include any information about the mother’s income.  The only information about her income was the father’s testimony she earned “significantly less” than he did.  The appeals court also pointed out that the inquiry is not just about income, but about the parent’s entire financial circumstances.

The appeals court also noted that only the mother provided evidence of the children’s financial needs and expenses.  She testified about expenses she had paid fully without reimbursement from the father.  The appeals court acknowledged this information was insufficient to allow the court to determine whether there had been a material and substantial change in the children’s circumstances, but found it supported a determination that ending the father’s child support would not be in the best interest of the children.

Furthermore, the evidence the father presented of his own income showed it had increased between 2012 and 2018.  The appeals court found this evidence also weighed against eliminating his obligation.

The appeals court found no abuse of discretion in the trial court’s finding the father had not shown a material and substantial change in financial circumstances.

The father also argued the court should have granted the modification under Tex. Fam. Code § 156.401(a)(2).  A court may modify an order if, after three years, the amount of monthly child support awarded differs by 20% or $100 from the amount in the current child support guidelines. Tex. Fam. Code § 156.401(a)(2).  Under the guidelines, courts will generally apply 25% of the net resources when there are two children.  The appeals court found 25% of the father’s net income for 2018 would be $1,042.19.  The decree ordered him to pay $1,047.95.  He therefore did not show a change of either $100 or 20% and the trial court did not err in finding he did not meet that burden.

The appeals court affirmed the denial of the petition.

A petition to modify a child support order often turns on the evidence presented.  If you are seeking or opposing a child support modification, a skilled Texas child support attorney can work with you to identify and present all of the necessary information to the court.  Call McClure Law Group at 214.692.8200  to set up a meeting.


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