In the Interest of D.L.C., a Child v. the State of Texas ( 2024 )

Opinion issued February 27, 2024
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00605-CV
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IN THE INTEREST OF D.L.C., A CHILD
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Case No. 2020-38549
MEMORANDUM OPINION
Appellant, N.M. (Father),1 appeals from the trial court’s final order in this suit
affecting the parent–child relationship. Father argues the trial court erred in
determining the home state of his daughter D.L.C. and in ordering him to pay
1
To protect the identity of the child, we use initials to refer to the child and refer to
her parents as “Mother” and “Father.” See TEX. FAM. CODE § 109.002(d).
monthly child support and retroactive child support. We modify the trial court’s
order in part, and reverse and remand in part. We affirm the remainder of the order
as modified.
BACKGROUND
D.L.C. was born in August 2019. At the time, her mother and father were not
married to each other, but both lived in Houston. When D.L.C. was about five
months old, in January 2020, she and V.C.F. (Mother) moved to be closer to
Mother’s family in Indiana. They have lived in Indiana ever since. About five
months after D.L.C. and Mother moved, Father filed a petition to adjudicate
parentage in a district court in Harris County, asking the trial court to declare him
D.L.C.’s father. Father continues to live in Houston.
While the suit was pending, Mother and Father entered into a mediated
settlement agreement providing neither party would pay child support at that time,
among other things. The trial court entered a temporary order with the same terms.
Following a bench trial, the trial court entered a final order adjudicating Father
to be D.L.C.’s father and appointing Father and Mother as D.L.C.’s joint managing
conservators. The order stated the trial court’s finding that Indiana is D.L.C.’s
current home state, but Texas was her home state in the six months preceding suit.
The order also required Father to pay $590.87 each month in child support, based on
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a finding that his monthly net resources were $2,954.33. The order required Father
to pay $15,644.00 in retroactive child support. Father has appealed.
DISCUSSION
Father raises three issues on appeal. First, he argues the trial court erred in
ordering him to pay retroactive child support in spite of the parties’ mediated
settlement agreement not to pay child support while the suit was pending. Second,
he argues the trial court erred in naming both Texas and Indiana as D.L.C.’s home
state. Third, he argues there was no evidence to support the trial court’s finding that
his monthly net resources were $2,954.33, and the trial court erred in basing his
monthly child-support obligations on this amount.
A. Home State
Applicable Law
In child-custody cases involving multiple states, the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA) determines whether a court of a
particular state has jurisdiction to make an initial child-custody determination. See
Powell v. Stover, 165 S.W.3d 322, 325 (Tex. 2005) (orig. proceeding); see also TEX.
FAM. CODE §§ 152.001–.317 (codifying UCCJEA in Texas).2 A Texas court has
2
Whether the word “jurisdiction” in the UCCJEA refers to subject-matter jurisdiction
is unclear. The Texas Supreme Court has observed that among courts in other states
that have considered the jurisdictional issue, “some refer to the UCCJEA as a
subject-matter-jurisdiction statute, while others do not. The issue is not settled.” In
re D.S., 602 S.W.3d 504, 517–18 (Tex. 2020) (footnotes omitted).
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jurisdiction to make an initial child-custody determination if Texas:
is the home state of the child on the date of the commencement of the
proceeding, or was the home state of the child within six months before
the commencement of the proceeding and the child is absent from this
state but a parent or person acting as a parent continues to live in this
state[.]
TEX. FAM. CODE § 152.201(a)(1) (emphasis added).
Chapter 152 of the Texas Family Code, this state’s enactment of the UCCJEA,
defines “home state” as “the state in which a child lived with a parent” for “at least
six consecutive months immediately before the commencement of a child custody
proceeding,” or, for a child younger than six months, “the state in which the child
lived from birth with a parent.” TEX. FAM. CODE § 152.102(7).
With some exceptions, the court in the child’s home state that made the initial
child-custody determination “has exclusive continuing jurisdiction over the
determination.” Id. § 152.202(a).
To remedy the problem of courts in different states issuing conflicting child-
custody orders, the UCCJEA prioritizes home-state jurisdiction. Powell, 165 S.W.3d
at 325. Thus, if any state is determined to be the child’s home state, generally no
other state may exercise jurisdiction to make an initial child-custody determination.
See id. By giving prominence to objective factors, like the child’s physical location,
the UCCJEA “helps to avoid the jurisdictional competition and conflict that result
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when courts in different states determine jurisdiction based on subjective factors.”
Id. at 326.
Construction of the Family Code’s home-state provision is a question of law
we review de novo. Id. at 324.
Analysis
The trial court’s final order stated:
[T]he child currently lives in Indiana[,] and the home state of the child
is Indiana; however, the Court finds that it has jurisdiction of this case
and of all the parties because . . . Texas was the home state of [t]he child
during the last six months prior to the filing of this suit and that no other
court has continuing, exclusive jurisdiction of this case.
Father contends the trial court erred by finding Indiana was D.L.C.’s home state in
addition to Texas. Given the UCCJEA’s purpose to avoid conflicting court orders in
multiple states and priority for home-state jurisdiction, see id. at 325, we agree that
after the trial court found Texas was D.L.C.’s home state, the trial court should not
have determined an additional home state.
We conclude that Texas, and only Texas, was D.L.C.’s home state when
Father filed suit. The parties agree that D.L.C. was born on August 22, 2019, and
that on or about January 20, 2020, when she was about five months old, she and her
mother moved to Indiana. Father filed suit about five months after that, on June 29,
2020. Thus, the relevant date for determining D.L.C.’s home state is June 29, 2020.
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See TEX. FAM. CODE § 152.201(a)(1) (home state determined on date of
commencement of child-custody proceeding).
On that date, D.L.C. had not lived in Indiana for at least six consecutive
months, so Indiana was not her home state. See id. § 152.102(7) (defining “home
state” generally as “the state in which a child lived with a parent” for “at least six
consecutive months immediately before the commencement of a child custody
proceeding”).
The six-month period before Father filed suit spanned from December 29,
2019, to June 29, 2020—the date on which Father filed suit. See id. § 152.201(a)(1)
(jurisdictional inquiry includes whether Texas was child’s home state “within six
months before the commencement of the [child-custody] proceeding”). Within that
six-month period, from December 29, 2019, until she moved to Indiana on January
20, 2020, D.L.C. was younger than six months and lived in Texas with her parent.
Thus, Texas was her home state from her birth until she moved on January 20. See
id. § 152.102(7) (defining “home state” for child younger than six months as “the
state in which the child lived from birth with a parent”); see also Waltenburg v.
Waltenburg, 270 S.W.3d 308, 318 (Tex. App.—Dallas 2008, no pet.) (noting that
“immediately upon” child’s birth in Texas, Texas became child’s home state).
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Thus, in the six months before Father filed suit, Texas was D.L.C.’s home
state, and Indiana was not yet D.L.C.’s home state, so Texas courts had jurisdiction
of the initial child-custody determination. See TEX. FAM. CODE § 152.201(a)(1).
Therefore, Texas, and not Indiana, was D.L.C.’s home state when Father filed
suit, and the trial court erred in concluding otherwise. We therefore sustain Father’s
second issue and modify the trial court’s order to delete the finding that Indiana is
D.L.C.’s home state. See TEX. R. APP. P. 43.2(b) (court of appeals may modify trial
court’s judgment and affirm as modified).
B. Net Resources and Monthly Child-Support Obligations
Applicable Law
The Family Code’s child-support guidelines “are intended to guide the court
in determining an equitable amount of child support.” TEX. FAM. CODE § 154.121.
Generally, a trial court calculates a party’s child-support obligations by determining
the amount of a party’s monthly net resources and applying the statutory percentage
guidelines to that amount. Id. §§ 154.062, 154.125(b). “Resources” include all wage
and salary income, self-employment income, and all other income actually received.
Id. § 154.062(b); see also id. § 154.065 (describing self-employment income). If the
party’s income fluctuates significantly, the trial court may average the income to
determine net resources. Swaab v. Swaab, 282 S.W.3d 519, 526 (Tex. App.—
Houston [14th Dist.] 2008, pet. dism’d w.o.j.). For a party whose monthly net
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resources are less than $9,200 and who has one child, the presumptive child-support
amount is 20% of the party’s monthly net resources. TEX. FAM. CODE § 154.125(b);
Office of the Att’y Gen., Announcement of Adjustment Required by Texas Family
Code § 154.125, 44 Tex. Reg. 3559, 3559 (2019) (announcing maximum amount of
net resources to which statutory guidelines apply is $9,200). The trial court’s child-
support order is presumed to be in the child’s best interest if it is established
according to the Family Code’s child-support guidelines. TEX. FAM. CODE
§ 154.122(a). After establishing the guideline amount of child support, the trial court
may consider additional factors to adjust that amount, including the child’s age and
needs, if evidence justifies varying from the guidelines. Id. § 154.123.
The trial court must require a party to provide financial information “sufficient
to accurately identify that party’s net resources and ability to pay child support.” Id.
§ 154.063. There “must be some evidence of a substantive and probative character
of net resources” to support the trial court’s calculation of net resources. Miles v.
Peacock, 229 S.W.3d 384, 389 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(quoting Newberry v. Bohn–Newberry, 146 S.W.3d 233, 236 (Tex. App.—Houston
[14th Dist.] 2004, no pet.)). But the trial court is not required to accept the party’s
evidence of income and net resources as true. Moore v. Moore, No. 01-13-00182-
CV, 2014 WL 2538555, at *8–9 (Tex. App.—Houston [1st Dist.] June 5, 2014, no
pet.) (mem. op.) (concluding trial court did not abuse discretion in child-support
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determination based on father’s monthly net resources of $7,500 because some
evidence supported that amount, even though father testified his monthly net
resources were under $400); see also, e.g., In re N.T., 335 S.W.3d 660, 666–67 (Tex.
App.—El Paso 2011, no pet.) (concluding trial court did not err in rejecting father’s
testimony that he earned less than minimum wage and in crediting mother’s
testimony, with supporting evidence, that father told her he was earning “at least
$10,000 each month”).
If the trial court specifically finds that a party is intentionally unemployed or
underemployed to avoid child-support obligations, the court may determine child
support based on the party’s earning potential instead of the party’s actual earnings,
when supported by the record. See Iliff v. Iliff, 339 S.W.3d 74, 80, 82 (Tex. 2011);
see also id. at 82 (describing burden shifting between parties after one party has
offered proof of his or her current wages).
A trial court has discretion to set child support within the Family Code’s
parameters. Id. at 78. We will not disturb a trial court’s child-support order on appeal
unless the trial court abused its discretion. Id. “A trial court abuses its discretion
when it acts arbitrarily or unreasonably, without reference to guiding rules or
principles.” Id. “Under an abuse of discretion standard, legal and factual
insufficiency are not independent grounds of error, but rather are relevant factors in
assessing whether the trial court abused its discretion.” In re J.J.G., 540 S.W.3d 44,
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55 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (en banc); see also Stamper
v. Knox, 254 S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2008, no pet.)
(noting that “appellate courts apply a hybrid analysis because sufficiency-of-the-
evidence and abuse-of-discretion standards of review often overlap in family law
cases.”).
Analysis
Father contends the trial court erred in finding his monthly net resources were
$2,954.33 when the only evidence presented in the record was that he earned $2,000
per month.
At trial, Father testified that he worked in construction and was self-employed.
He also testified that he earned $2,000 a month and his annual adjusted gross income,
as reported on his latest income tax return, was $22,000. He did not testify as to any
other sources of income. No other witnesses testified about his income, and Mother
did not introduce any evidence relating to his income.
Father testified that he worked odd construction jobs for contractors, so the
number of jobs he worked in a year varied. Presumably, his income varied as well.
But Father did not provide a range of income from which the trial court could
determine an average. Cf. Swaab, 282 S.W.3d at 526 (trial court may average income
to determine net resources if party’s income fluctuates significantly).
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After determining Father’s net resources, the trial court could have adjusted
the amount of child support he was obligated to pay to take into account additional
factors like D.L.C.’s needs. See TEX. FAM. CODE § 154.123. Mother testified that
D.L.C. had significant medical needs, as she had been hospitalized multiple times
for seizures. But those needs could have justified a variation in the final amount of
child support, not in the determination of Father’s net resources. See id. § 154.062(b)
(defining “resources” to include specific types of income).
The trial court stated in its findings of fact and conclusions of law that
“[t]estimony and evidence concerning [Father’s] capacity for earnings were
presented and considered by the Court.” Father testified that at his previous job,
where he worked until he was laid off in 2019, he earned $40,000 a year. While a
trial court can base child-support obligations on a party’s earning potential rather
than actual income, the trial court may only do so if it makes a specific finding,
supported by the record, that the party was intentionally unemployed or
underemployed. See Iliff, 339 S.W.3d at 80, 82; In re A.A.T., 583 S.W.3d 914, 924
(Tex. App.—El Paso 2019, no pet.) (“[W]hen setting child support based on a
finding of a[ party]’s earning potential, the trial court must make an express finding
of intentional unemployment or underemployment, and any such finding must be
supported by the record.”). Here, the trial court made no such finding, and therefore
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was not authorized to determine Father’s child-support obligations based on his
earning capacity.
In sum, the only evidence presented was that Father’s income was $2,000 per
month, and there was no evidence to support the trial court’s finding that his monthly
net resources were $2,954.33. The trial court was not required to accept Father’s
evidence, see Moore, 2014 WL 2538555, at *8, but there was no other evidence of
a substantive or probative character to support the trial court’s finding, see Miles,
229 S.W.3d at 389. Though a trial court has broad discretion to determine child-
support obligations, see Iliff, 339 S.W.3d at 78, the trial court’s finding that Father’s
monthly net resources were $2,954.33 appears to be arbitrary, and therefore, the trial
court abused its discretion, see id. (trial court abuses its discretion when it acts
arbitrarily).
We therefore sustain Father’s third issue. We reverse the portion of the trial
court’s order setting forth Father’s monthly child-support obligations and remand to
the trial court for further proceedings to determine Father’s net resources and
monthly child-support obligations.
C. Retroactive Child Support
Applicable Law
A trial court may order a parent to pay retroactive child support if the parent
has not previously been ordered to pay child support and was not a party to any suit
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in which a trial court ordered child support. TEX. FAM. CODE § 154.009(a). The trial
court must apply the Family Code’s child-support guidelines and consider the
party’s monthly net resources during the relevant time period. Id. §§ 154.009(b),
154.131(a), (b).
The Family Code allows parties to enter into a written agreement concerning
child support to “promote the amicable settlement of disputes.” Id. § 154.124(a). The
trial court must render an order in accordance with the parties’ agreement if the trial
court finds the agreement is in the child’s best interest. Id. § 154.124(b). When
parties enter into a temporary agreement concerning child support, the trial court
does not abuse its discretion by ordering retroactive child support for the period
covered by the temporary agreement, even if the trial court’s order conflicts with the
earlier temporary agreement. In re Tucker, 96 S.W.3d 662, 668 (Tex. App.—
Texarkana 2003, no pet.); accord In re T.G., No. 05-12-00460-CV, 2013 WL
3154975, at *5 (Tex. App.—Dallas June 19, 2013, no pet.) (mem. op.).
Again, the trial court has discretion to set child support, and we will not disturb
a trial court’s child-support order on appeal unless the trial court abused its
discretion. Iliff, 339 S.W.3d at 78.
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Analysis
Father argues the trial court abused its discretion by ordering him to pay
retroactive child support for the period covered by his temporary agreement with
Mother.
Father and Mother signed a mediated settlement agreement before trial. The
agreement provided: “Neither parent shall pay child support at this time[.]” The
agreement also provided that it was binding, irrevocable, and “the full agreement
between the parties concerning the issues addressed and resolved in the settlement
FOR TEMPORARY ORDERS ONLY.” Father and Mother signed the agreement
on August 10, 2020, and the trial court entered a temporary order with the same
terms a few weeks later.
The trial court’s final order in this suit ordered Father to pay retroactive child
support in the amount of $15,644.00 for the period of September 1, 2019, through
April 1, 2022. The trial court’s order thus ordered Father to pay child support for the
period covered by the temporary agreement in which he and Mother agreed not to
pay any child support.
At least two appellate courts have considered this issue, and both concluded
the trial court did not abuse its discretion in ordering retroactive child support despite
the parties’ temporary agreement not to pay child support. In re T.G., 2013 WL
3154975, at *5; In re Tucker, 96 S.W.3d at 668. We agree that any temporary
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agreement regarding child support is just that, and a trial court does not abuse its
broad discretion by later ordering retroactive child support for the period covered by
the temporary agreement. We overrule Father’s first issue.
CONCLUSION
For the reasons discussed above, we conclude there was no error in the trial
court’s order requiring Father to pay retroactive child support. However, the trial
court erred in naming both Texas and Indiana as D.L.C.’s home state, and we
therefore reverse the portion of the order finding Indiana is D.L.C.’s home state and
modify the trial court’s order to delete that finding. The trial court also erred in
finding Father’s monthly net resources were $2,954.33, and we reverse the portion
of the trial court’s order setting forth Father’s monthly child-support obligations and
remand to the trial court for further proceedings to determine Father’s net resources
and monthly child-support obligations. We affirm the remainder of the order as
modified.
Gordon Goodman
Justice
Panel consists of Justices Goodman, Countiss, and Farris.
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