Texas Court Finds Mother Is Intentionally Unemployed

iStock-1331374129-300x200When a parent is intentionally unemployed, a court may order Texas child support based on that parent’s earning potential.  Tex. Fam. Code 154.066(a). A mother recently challenged a court’s finding she was intentionally unemployed, arguing instead that her mental health concerns prevented her from being employed.

When the parents divorced in 2010, the court ordered the mother to pay $150 in child support.

She sought to modify the custody order in 2018, and the other party responded by asking for more child support.  The mother asked the court to eliminate her child-support obligation altogether.

Trial Court Concludes Mother is Intentionally Underemployed

The parties reached an agreement on the other issues, but went to trial with regard to the child support.  The other parties argued the mother was intentionally unemployed and asked the court to calculate the obligation based on her potential earnings.  The mother argued her mental health prevented her from working.

The trial court concluded she was intentionally unemployed with an earning potential of at least $40,000. The mother appealed.

She argued there was not evidence that she was intentionally unemployed and the evidence showed her mental health concerns prevented her from being employed.

The appeals court noted the mother had worked as a certified esthetician when she lived in Texas.  She was now living in Washington.  She testified she could work in the same field in Washington, but suggested it would not be good for her mental health.  There was no dispute that she had mental-health concerns arising from previous abuse, but there was a dispute regarding her ability or inability to work due to those mental-health issues.

The mother had not had a job since December 2016.  According to the appeals court, her romantic partner had been supporting her.  The mother and her partner testified that they determined daycare costs would outweigh her earnings.  The appeals court noted the trial court could have considered the mother’s voluntary decision to be unemployed in determining if she was intentionally unemployed. The appeals court found the trial court did not abuse its discretion when it found she was intentionally unemployed.

The  mother also argued the trial court erred in impliedly including resources given to her by her romantic partner in calculating her net resources.

Appeals Court Affirms Trial Court’s Calculation of Mother’s Net Resources

The trial court had found the mother’s earning potential was at least $40,000 annually. Pursuant to Tex. Fam. Code § 154.069(a), the trial court may not include any part of a parent’s spouse’s net resources in the parent’s net resources for purposes of calculating child support.  The appeals court pointed out that the mother was not married to her romantic partner.

The paternal grandmother had asked the court to consider that the mother’s romantic partner provided her “$3,500 to $4,500” per month.  The mother argued that the earning potential determined by the court, which worked out to $3,333.33 monthly, was “almost identical” to the amount identified by the grandmother.

The appeals court rejected that argument, finding there was sufficient evidence to support a finding of the earning potential without including the romantic partner’s net resources. The appellant had earned $40,825 in 2015 working full time.  Her 2016 tax return reflected earnings of about $25,839, but she had only worked July through December. There was, therefore, evidence the mother could earn between $40,000 and $51,000 in the last two years she worked. This constituted probative and substantive evidence that supported the trial court’s judgment. The appeals court found there was no abuse of discretion in the court’s finding the mother had the potential to earn $40,000 per year.

The appeals court also found the trial court’s failure to file findings of fact and conclusions of law was harmless.

The appeals court affirmed the trial court’s judgment.

Intentional Underemployment Can Complicate Child-Support Cases – Call McClure Law Group Today for Assistance

There are many reasons a parent may be unemployed, but if the court finds they are intentionally unemployed, it may calculate child support based on potential earnings. As this case shows, the court may consider past earnings in determining earning potential.  If you are involved in a child support dispute where one parent is not working, an experienced Texas child support lawyer can help you protect your rights and your child.  Schedule a consultation with McClure Law Group by calling 214.692.8200.


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