Texas Court Denies Child Support Modification Based on Father’s Alleged Change in Income

A trial court may modify a Texas child support order if there has been a material and substantial change in circumstances since the rendition of the prior order. The party seeking the modification has the burden of establishing the change in circumstances. The court may also modify an order if it has been at least three years since the prior order was rendered or modified and the order varies by 20% or $100 from the guidelines.  Tex. Fam. Code § 156.401(a).  As with many issues involving child custody or support, the court’s primary consideration should be the child’s best interest.  A father recently appealed a court’s denial of his request to modify his child support obligation due to a change in income.

Petition for Modification

According to the appeals court, the father’s monthly child support obligation under a 2015 agreed order in a modification suit was $1,231.78 and his monthly medical support obligation was $105. There were no findings as to the father’s net resources or any indication in the order that the child support was based on the guidelines.

The father petitioned for modification in October 2021, alleging a material and substantial change in his circumstances based on his income.  He requested a decrease in his child support obligation.  The mother argued that the previous modification agreement had not been based on the child support guidelines.  She further argued that a change in the father’s income did not constitute a material and substantial change in circumstances because there was no indication the parties had relied on the father’s income in setting the child support obligation in the agreed order.

At the hearing, the father agreed the medical support obligation should be increased to reflect an increase in the cost of insurance for the child.  He testified that he had two other children when the prior order was entered, but had another child since.  He argued the agreed order had taken into consideration his other two children.

A 2015 paystub indicated that his earnings through April of that year were $53,089.57.  He testified that paystub had been considered in calculating the child support obligation, but acknowledged nothing in the agreed order indicated a number or percentage used in the calculation.

He testified he had worked in the “auto industry” and earned nearly $120,000 in 2015.  W-2 forms supported this testimony. The father stated all of his income from that employer was commission.  He quit that job and started working for a different employer in 2020.  His W-2 for 2020 reflected $136,184.49 in gross income.  He changed jobs again, was unemployed for a while, and started working for his current employer in August 2021.

According to the father, he was still in the auto industry, but he did not sell vehicles anymore.  He claimed his annual salary was $72,000 guaranteed salary plus commission.  The 2021 W-2 for the new employer reflected $29,500, which the father said was his earnings from August through the end of the year.  A 2022 paystub showed his 2022 earnings through July 31, 2022 were $58,973, $13,973 of which were commissions.  The father testified there was no contractual cap on his commissions.  He also testified he had earned less during the pandemic, and his current job offered security and guaranteed income.

The father projected total earnings of $98,922.20 in earnings for 2022, based on his year-to-date earnings, and divided that number by 12 to get a monthly amount.  He calculated an obligation of $920.77, based on his monthly amount, the stipulated medical obligation, and one child with the mother and three outside that relationship.

The trial court denied the requested modification, finding the father failed to establish the material allegations in his petition. The father requested findings of fact and conclusions of law, but the trial court never filed them. The father appealed.

The Father’s Appeal

The appeals court concluded the father had not been harmed by the trial court’s failure to issue findings of fact and conclusions of law because he was able to properly present his issues on appeal.

The father argued the trial court abused its discretion because the evidence showed he was entitled to modification. He argued there was sufficient evidence to prove a material and substantial change in circumstances.  The appeals court noted, however, that the trial court did not have to credit the father’s projections regarding his income or his testimony about application of the guidelines.  The agreed order had not included any findings regarding the father’s earnings or net resources, nor did it indicate the obligation was based on the guidelines. It did not include any findings regarding the number of children the father had.  Although the father testified the 2015 paystub was used to calculate his obligation in the agreed order, the order did not include any findings to support that.  The trial court did not have to credit his testimony.

Although the father claimed he earned less at his new job, he admitted he did not know if he would earn $120,000 in 2022 like he did in 2015.  His commissions were not capped. The appeals court concluded his projections were speculative.

The appeals court held there was no abuse of discretion in the trial court’s implied finding that there had not been a material and substantial change in the father’s circumstances.  The appeals court also noted that the trial court could have concluded modification was not in the child’s best interest.

The father also argued he was entitled to modification under Tex. Fam. Code § 156.401(a)(2), which allows modification if three years have past since rendition of the prior order or modification and the monthly child support award in the order differs from the amount that would be awarded under the guidelines by 20% or $100.  The appeals court rejected this argument, again pointing out that the trial court may not have believed the father’s projected earnings or his testimony regarding application of the guidelines.  The trial court could have concluded the father had not shown there would be a 20% or $100 difference.

The appeals court affirmed the trial court’s judgment.

Seek Advice from an Experienced Texas Family Law Attorney

Although the father presented his W-2s to show his salary, much of the context relied on his testimony.  The trial court has discretion in weighing or crediting testimony.  Whether you are seeking or opposing a change in child support or child custody, the skilled Texas family law modification attorneys at McClure Law Group have the knowledge to advise you on your options and help you build your case.  Call us at 214.692.8200.



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