DuBois v. DuBois

• Decision Date: 30 September 1997
• Docket Number: No. 12-96-00310-CV,12-96-00310-CV
• Citation: 956 S.W.2d 607
• Parties: Felder Lafayette DuBOIS, Jr., Appellant, v. Lesli Ann DuBOIS, Appellee.
• Court: Texas Court of Appeals

Page 607

956 S.W.2d 607

Felder Lafayette DuBOIS, Jr., Appellant, v. Lesli Ann DuBOIS, Appellee.

No. 12-96-00310-CV.

Court of Appeals of Texas,

Tyler.

Sept. 30, 1997.

Ricky W. Richards, Jacksonville, for appellant.

Bert Creel, Tyler, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

HOLCOMB, Justice.

Felder Dubois ("Felder") appeals the trial court's judgment which was based on findings that he was intentionally underemployed, that his earning potential was $2,820.00 per month, and that child support for his two minor children should be based upon his earning potential rather than upon actual wages. Lesli Dubois ("Lesli") appeals the trial court's denial of alimony. We will reverse and remand to the trial court for a new trial on the issue of child support. We will affirm the trial court's order denying alimony.

Because both parties present evidentiary questions, we will briefly recite the facts. Felder and Lesli, along with their two minor children, lived in Tyler, Texas. Felder worked as a lineman with Cherokee County Electric Co-op, where his net income was $2,820.00 per month. Lesli was a full-time wife and mother, although she was certified to work as an elementary school teacher. Felder and Lesli began experiencing marital difficulties, and Lesli moved with the children to her parents' house in Van Zandt County. Felder moved into an apartment in Tyler and continued working for the Co-op. Lesli filed a petition for divorce, but at the hearing for temporary orders, Lesli and Felder decided to attempt a reconciliation. While taking steps toward reconciling, Lesli and Felder continued to live separately and agreed to informally follow the state child support and possession guidelines. Felder agreed to pay $500.00 per month temporary support for his wife and $705.00 per month in child support. No temporary court orders establishing child support or possession were entered.

Felder testified that in his position with the Co-op, he was required to be on call every third weekend. Consequently, he was frequently unable to see the children on many of his scheduled weekends, and Lesli refused to accommodate his schedule. Additionally, Lesli wanted the children to play baseball, declining to allow Felder to take the children away to Tyler when there were practices or games at home. She also asked Felder to reduce the amount of time he had with his children in the summer so that they could finish the baseball season. Lesli testified that Felder threatened to quit his job and move to his parents' house in Leggett, Texas in order to have more time with his children in the summer. He reasoned that pursuant to the standard possession order, he would have the children twelve additional days per summer if he lived more than 100 miles away.

When Felder's and Lesli's attempts to reconcile failed, Felder quit his job because he "was upset emotionally because of not seeing [his] children," and to garner the support of his personal family. Felder also testified that due to his emotional turmoil, he was afraid that his lack of concentration in his high risk job was endangering his life. ¹ Felder moved to his parents' house in Leggett, and began work as an electrical contractor with his brother-in-law, where he did not work with live wires. He only netted $633.00 per month in his new job, but was free on weekends and had a flexible schedule to facilitate visitation. Felder discontinued spousal support payments, reduced child support payments to $200.00 per month, and paid $252.00 per month for insurance coverage for the children.

Upon Felder's request, the trial court filed findings of fact and conclusions of law. The court found the following: 1) Felder intentionally became underemployed without giving notice to his former employer and with the intent to lower his child support; 2) Felder's actual income is significantly less than what he could earn because of his intentional underemployment; 3) Felder's earning potential is a net income of $2,820.00 per month; and 4) the amount of child support, if the child support guidelines are applied to Felder's earning potential, is $641.00 per month. Accordingly, the trial court rendered judgment that Felder pay $641.00 child support which was more than his net monthly income.

The trial court is accorded broad discretion in setting and modifying child support payments and, absent a clear abuse of discretion, the trial court's order will not be disturbed on appeal. Stocker v. Magera, 807 S.W.2d 753, 754 (Tex.App.--Texarkana 1990, writ denied). In deciding whether a trial court has abused its discretion, we must determine whether the court acted without reference to any guiding rules and principles, i.e., arbitrarily or unreasonably. Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex.App.--San Antonio 1995, writ denied). In making that determination, we must view the evidence in the light most favorable to the trial court's actions and indulge in every legal presumption in favor of the judgment. Id. If there is some probative and substantive evidence to support the judgment, the trial court did not abuse its discretion. Id. (citing Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.--Houston [1st Dist.] 1993, writ denied)).

If a parent's actual income is significantly less than what he could earn because of intentional unemployment or underemployment, the court may apply the child support guidelines to his earning potential. TEX. FAM.CODE ANN. § 154.066 (Vernon 1996). In effect, the court can prevent a parent from evading child support by treating the parent's earning potential as an element of his net resources. The Family Code fails to define "intentional underemployment or unemployment," and there is an absence of caselaw illuminating the utilization of § 154.066. The traditional interpretation, however, requires a finding that the reduction in income must have been effectuated with a design to reduce the child support payments. See Starck v. Nelson, 878 S.W.2d 302, 307 n. 10 (Tex.App.--Corpus Christi 1994, no writ); Woodall v. Woodall, 837 S.W.2d 856, 858 (Tex.App.--Houston [14th Dist.] 1992, no writ); Casterline v. Burden, 560 S.W.2d 499, 501 (Tex.Civ.App.--Dallas 1977, no writ); McSween v. McSween, 472 S.W.2d 307, 310 (Tex.Civ.App.--San Antonio 1971, no writ). Thus, in order for a court to find that a parent is intentionally underemployed or unemployed under TEX. FAM.CODE § 154.066, there must be evidence that the parent reduced his income for the purpose of decreasing his child support payments. There is no presumption that simply because a parent is no longer as lucratively employed as he was during his marriage, he is intentionally underemployed or unemployed. The requisite intent or lack thereof, however, may be inferred from such circumstances as the parent's education, economic adversities and business reversals, business background, and earning potential. Kish v. Kole, 874 S.W.2d 835, 839 (Tex.App.--Beaumont 1994, no writ). In addition, we must be cognizant of a parent's right as a citizen to the pursuit of happiness and to the freedom to live where he chooses. See Hunt v. Hudgins, 168 S.W.2d 703,...