Court of Appeals of Texas, Fourth District, San Antonio
the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 17-302 Honorable Bill R. Palmer, Judge
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez,
Justice Liza A. Rodriguez, Justice
C. MARTINEZ, JUSTICE
Warren appeals a final divorce decree in which the trial
court ordered Eric-Jason M. Warren to pay Tomoko child
support for five months after which neither parent would pay
the other child support. Tomoko argues the trial court abused
its discretion given the large income disparity between the
parties. Tomoko also argues the evidence is insufficient to
support a finding that she is intentionally underemployed. We
affirm the decree.
and Eric entered into a mediated settlement agreement
resolving all issues relating to their divorce except the
issue of child support which the trial court determined after
a bench trial. The trial court ordered Eric to pay Tomoko
child support for five months subject to earlier termination
on the earliest occurrence of either of the following two
events; (1) Tomoko failed to timely pay the mortgage payment
for the marital residence which she was awarded in the
division of property; or (2) Eric obtained a residence with
at least two bedrooms. After the five months, neither parent
was ordered to pay the other child support.
findings of fact, the trial court specified the following
reasons for varying from the child support guidelines. The
parties agreed in the mediated settlement agreement that the
parties would have possession of the children an equal amount
of time. Eric has significant health problems which prohibit
him from earning additional income. Eric also has been found
to be disabled and receives disability pay. Tomoko has two
college degrees and the ability to work as a licensed school
teacher, and she did not testify as to any disability or
physical handicap that would prevent her from earning
additional income. Tomoko was awarded the more reliable,
newer automobile and the marital residence while Eric must
obtain new housing at his sole cost in order to exercise his
equal visitation with the children and must also secure a
different automobile.Finally, the trial court expressly found
Tomoko was underemployed, and her possible net resources are
comparable to Eric's if she was employed to her ability.
of Review and Applicable Law
court's child support order will not be overturned on
appeal unless the complaining party can show a clear abuse of
discretion. Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 1990) (per curiam); In re N.T.P., 402 S.W.3d
13, 18 (Tex. App.-San Antonio 2012, no pet.). "Under the
abuse of discretion standard, legal and factual sufficiency
of the evidence are not independent grounds for asserting
error." In re M.P.M., 161 S.W.3d 650, 654 (Tex.
App.-San Antonio 2005, no pet.). "However, legal and
factual sufficiency are relevant factors in assessing whether
the trial court abused its discretion." Id.
"When reviewing the trial court's decision for an
abuse of discretion, we may not substitute our judgment for
that of the trial court with respect to resolution of factual
issues or matters committed to the trial court's
discretion." In re N.T.P., 402 S.W.3d at 22.
"A trial court does not abuse its discretion when its
decision is based on conflicting evidence or if some evidence
of a probative and substantive character exists to support
the child-support order." Villalpando v.
Villalpando, 480 S.W.3d 801, 811 (Tex. App.-Houston
[14th Dist.] 2015, no pet.).
law has long recognized parents have a legal duty to support
their children during their minority." Iliff v.
Iliff, 339 S.W.3d 74, 81 (Tex. 2011). "A parent who
is qualified to obtain gainful employment cannot evade his or
her child support obligation by voluntarily remaining
unemployed or underemployed." Id. For these
reasons, a court may apply support guidelines based on a
party's earning potential (rather than the party's
actual income) if the court finds the party's actual
income "is significantly less than what the [party]
could earn because of intentional unemployment or
underemployment." Tex. Fam. Code Ann. § 154.066.
"Intentionally unemployed or underemployed" means
the party "consciously chooses to remain unemployed or
underemployed." Iliff, 339 S.W.3d at 80.
"The court must engage in a case-by-case determination
to decide whether child support should be set based on
earning potential as opposed to actual earnings."
Id. at 82.
case, after Tomoko offered proof of her current wages, Eric
bore the burden of demonstrating she is intentionally
unemployed or underemployed. See id. The burden then
shifted to Tomoko to offer evidence in rebuttal. See
previously noted, Tomoko contends the trial court abused its
discretion in not ordering Eric to pay child support given
the parties' income disparity and argues the evidence is
insufficient to support the trial court's finding that
she is intentionally underemployed.
the bench trial, Tomoko testified that she was then employed
at a daycare making $12.00 an hour and worked thirty to forty
hours a week. The evidence also established, however, that
she had an associate's degree in English from a college
in Japan and a bachelor's degree in early childhood
education from the University of Texas at San Antonio.
Although Tomoko previously held a teaching license, she had
not applied to renew the license which had expired. Tomoko
testified she did not work after the children were born. At
the time of trial, the children were thirteen and seven. When
asked if there was a reason she had not applied to renew her
teaching license, Tomoko responded, "No." When
asked if anything was preventing her from renewing her
teaching license, Tomoko responded she did not believe being