In re Y.B. 300 S.W.3d 1

Here are the facts as reported from the case: Swift and Tina Bruno have known each other for over ten years. In December of 2004, Bruno traveled to the Ukraine to adopt three girls. Bruno is the girls’ only legal parent. On April 22, 2007, Swift and Bruno married. On January 21, 2008, Swift moved out of Bruno’s house. He filed a suit affecting the parent-child relationship (“SAPCR”) on March 10, 2008. A week later, Bruno filed a plea to the jurisdiction and motion to dismiss, challenging Swift’s standing to bring a SAPCR. Conflicting testimony was presented regarding whether Swift met the requisite amount of time required to establish standing under the Family Code. The trial court granted Bruno’s plea to the jurisdiction and motion to dismiss, and awarded Bruno $4,000 in attorney’s fees. In its findings of fact and conclusions of law, the trial court found that Swift did not have actual care, control, and possession of the children for at least six months. The trial court concluded that Swift lacked standing under section 102.003(a)(9) of the Family Code to bring a SAPCR. Swift now appeals.

The majority held the Trial Court erred by dismissing the lawsuit because Swift raised a fact issue on whether he is and was in fact a parent.

Justice Rebecca Simmons filed a dissenting opinion. She felt “At best, the evidence shows Swift lived in Bruno’s home for approximately nine months. According to Swift, he would: sometimes put cereal out for the children in the morning; eat dinner with the family; drive the children to school; help with homework; take the children fishing; bath the youngest child; and the girls called him “Daddy.” Justice Simmons felt these activities are typical of those undertaken by stepparents and felt the majority’s broad interpretation of 102.003 would give almost anyone involved with children for more than six months standing to file SAPCR. Justice Simmons cites, Troxel as a parent’s fundamental right to make decisions for their children as well as In the Interest of M.J.G. 248 S.W.3d 753 where the grandparents of MJG had a heck of a lot more involvement with the children than Swift had with YB and the Motion to Strike was granted in the MJG case. Based on the evidence in this case there was no fact issue because there were no facts establishing Swift mad any decisions at all concerning the health, education and welfare under the M.J.G. standard. Seems like Justice Simmons got it right. Under the majority’s standard, almost anyone would qualify for standing because the burden to create a fact issue on this is so low.

The Texas Family Code requires courts to make specific findings if “the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines.” Tex. Fam.Code Ann. § 154.130(a)(3) (Vernon 2008). Trial courts must provide “specific reasons” for the variance between the child support percentage guidelines and the child support awarded. Id. § 154.130(b)(5). Otherwise, the law presumes the guideline child support payments are in the best interest of the child. Id. § 154.123(a) (Vernon 2008). A finding of voluntary underemployment, for example, allows the court to set child support at the “earning potential” rather than the actual earnings of the child support obligor. Id. § 154.066 (Vernon 2008).

To begin the voluntary underemployment analysis, the trial court contemplates the obligor’s proof of current wages. In re K.N.C., 276 S.W.3d at 627; see also Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex.App.-Corpus Christi 2002, no pet.); DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.). Once the obligor’s wages are established, the burden shifts to the obligee to demonstrate the obligor’s intent to decrease income for the purpose of reducing child support payments. In re K.N.C., 276 S.W.3d at 627. Evidence of intent, such as the circumstances of obligor’s education, economic adversities, business reversals, business background, and earning potential, gives rise to an inference of voluntary underemployment. In re P.J.H., 25 S.W.3d at 405-06; see also In re K.N.C., 276 S.W.3d at 627. These factors, however, are not exhaustive. Roosth v. Roosth, 889 S.W.2d 445, 454 (Tex.App.-Houston [14th Dist.] 1994, writ denied); see, e.g., Garner, 200 S.W.3d at 303 (where the trial court considered the gifts and financial support of the obligor’s extended family in determining his net resources).

Husband’s argument rests on his testimony and that of his employer, Lance McDade. McDade stated that by agreement Husband set his own schedule and did not work every day. He further testified that he assigned Husband’s projects and that Husband received a forty percent commission from the profits. McDade told the trial court that Husband earned $62,730 in 2005, $76,900 in 2006, and $54,300 in 2007. When asked about the earnings decline between 2006 and 2007, McDade indicated that he reduced Husband’s workload based on Husband’s emotional state and that his business decreased overall because of adverse economic conditions. He testified Husband did not ask for a reduction of his workload, and that he subsequently asked McDade to increase it. Husband told the court that in 2007 his income decreased more than the income of the business overall because McDade would assign more work in the downturn to those employees with lower commission percentages. There was is no evidence to the contrary.

Wife basically argued that Husband is incorrect that she must provide evidence of intentional underemployment and that the Court has discretion to weigh the testimony of the witness and other evidence. The Appeals Court cited In re P.J.H., 25 S.W.3d at 405-06 that established Wife had the burden at trial to present evidence of underemployment as a specific basis for departing from child support guidelines

Wife relies on In re A.B.A.T.W., 266 S.W.3d 580 (Tex.App.-Dallas 2008, no pet.), to demonstrate that Husband and McDade’s testimony created conflicting evidence which allowed the trial court to make a determination of Husband’s intent. However, in this case the Court found Wife neither testified nor provided other evidence to contradict Husband’s and his employers testimony about Husband’s intent to earn income. The Appeals Court conceded that although the Trial Court was not required to accept the testimony of Husband and his employer as true, the trial Courts rejection of that testimony as not credible would still leave the trial court without any evidence that Husband intended to work less in order to reduce child support payments and presumably that would be an abuse of discretion because there would be no evidence at all of any intentional underemployment. Presumably, if the mother had a chance to respond to the Court of Appeals she would argue that if the Court found the employee/employer testimony not credible regarding why there was a reduction in income then the Trial Court was free to presume other reasons, like intentional underemployment, could be attributed to the drop in income. Again presumably, the Court of Appeals would respond that inconsistent testimony alone regarding a drop in income is not a “specific reason” under the Family Code. The Court remanded the case to set child support according the guidelines.

Patient’s estate brought medical malpractice action against hospital and several of its staff members, relating to patient’s death in hospital two days after he was admitted to hospital with kidney stones. After jury returned unanimous verdict for defendants, the 192nd Judicial District Court, Dallas County, Merrill Hartman, J., granted, “in the interests of justice and fairness,” estate’s motion for new trial as to claims against two nurses and as to hospital as their employer. Hospital and nurses petitioned for writ of mandamus. The Dallas Court of Appeals, 290 S.W.3d 238, 2006 WL 1309583, denied the petition. Hospital and nurses petitioned for writ of mandamus. After briefing and argument, the trial judge was succeeded in office by another judge. The Supreme Court abated and remanded so successor judge could reconsider the order granting new trial. The District Court, Craig Smith, J., reaffirmed the prior order without setting out reasons for granting the new trial.

 The Court ruled that mandamus review was warranted, as to trial court’s order granting in part plaintiff’s motion for new trial in medical malpractice action, which order explained the trial court’s action only as being “in the interests of justice and fairness,” without further explanation of trial court’s reasons for setting aside jury’s verdict; mandamus petition presented significant issue regarding protection of state constitutional right to jury trial, absent mandamus review the defendants seemingly would have no appellate review of order granting new trial, and even if defendants obtained reversal of verdict after second trial such appellate remedy would be inadequate, because they would have lost the benefit of final judgment based on first jury verdict without ever knowing why, and would have endured the time, trouble, and expense of second trial. Vernon’s Ann.Texas Const. Art. 1, § 15.

In re Iliff, 2009 WL 2195559 (Tex. App. – Austin 2009, pet. Filed) – Austin Court of Appeals made the following finding (please note Dallas area residents do not live within the jurisdiction of the Austin Court of Appeals – we live within the jurisdiction of the Dallas Court of Appeals and hence follow slightly different law):

We likewise reject James’s argument that the trial court was required to find that his voluntary unemployment was for the primary purpose of avoiding child support before setting child support based upon his earning potential as opposed to his actual income. In support of this argument, James relies on the holdings of our sister courts of appeals in McLane, 263 S.W.3d at 362, and In re P.J.H., 25 S.W.3d 402, 405-06 (Tex.App.-Fort Worth 2000, no pet.). But this Court has declined to adopt the reasoning of our sister courts. In Hollifield v. Hollifield, 925 S.W.2d 153 finding that unemployment was but one of myriad factors a court could consider when exercising its broad discretion to determine child support obligations, this Court held that “[s]ection 154.066 does not require the court to consider whether the obligor’s ‘voluntary unemployment’ was for the primary purpose of avoiding child support.” 925 S.W.2d at 156. This Court’s holding in Hollifield is consistent with the plain language of section 154.066, and we decline to revisit that holding here. We overrule James’s first issue. 

The Court reasoned that Texas Family Code Section154.066 does not require that a reduction in income is for the ‘primary purpose of avoiding child support’ it’s merely one of the factor’s the Court can use in deciding and setting child support.

Dunham v. Spurgin, 245 S.W.3d 12 (Tex. App.-Dallas 2007, pet. filed) Here are the background facts:

            Burnett-Dunham and Spurgin divorced in December of 1967. The trial court awarded custody of the two children, who were six and eight years old, to Burnett-Dunham and ordered Spurgin to pay thirty dollars per week in child support until the youngest child reached the age of eighteen. After 1967, the court issued no further orders modifying child support payments. Not until March 21, 2006, when the children were in their forties, did Burnett-Dunham file a notice of application for judicial writ of withholding and a child support lien seeking $245,324.69 in unpaid child support. Spurgin filed a motion to stay issuance of the withholding contending the amount of arrearages was incorrect, the action was barred by section 157.005 of the family code, and the order was incapable of enforcement because it was ambiguous. He also filed a motion for release of the lien claiming sections 157.313 and 157.327 of the family code required the notice to include an order determining arrearages, which never occurred.

After a hearing on these two motions, the trial court determined section 157.327 was not available to Burnett-Dunham, and it did not have jurisdiction to determine arrearages. Thus, the trial court dismissed the notice of application for judicial writ of income withholding and the notice of child support lien.

The Dallas Court of Appeals ruled in favor of the father and affirmed the trial court’s judgment mostly by applying dormancy principles to judgments and the 10 year bar. It’s always interesting to read cases where I know three of the four lawyers as well as the presiding Judge at the time. Good advocacy on both sides of this case as well as the correct application of the law.