In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-17-00377-CV

___________________________

On Appeal from the 16th District Court

Denton County, Texas

Trial Court No. 2006-10925-16

Before Walker, Kerr, and Pittman, JJ.

Memorandum Opinion by Justice Pittman

IN THE INTEREST OF S.C., R.C., AND L.C., CHILDREN
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MEMORANDUM OPINION

Appellant M.C. (Father) appeals the trial court’s order modifying the amount of 

his child support obligation upward instead of downward. In two issues, he contends 

that the trial court abused its discretion by (1) finding that he is intentionally 

underemployed, considering that Appellee L.T. (Mother) had the burden to provide 

evidence and (2) departing from the child support guidelines and basing child support 

on his potential earnings instead of his actual income. Because we hold that the trial 

court did not abuse its discretion by finding that Father is intentionally 

underemployed or by applying the child support guidelines to his potential earnings 

instead of his actual income, we affirm the trial court’s judgment.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Father and Mother divorced in January 2007. Their three children—S.C., R.C., 

and L.C., were then eight, six, and four years old, respectively.1 In July 2015, Father, 

who remarried after the divorce, received net proceeds of approximately 

$100,000 from the sale of his separate-property residence, was earning $140,000 per 

year at his new job, and filed a petition to modify the parent-child relationship based 

on a mediated settlement agreement he and Mother entered into in January 2015. 

Father lost his job in December 2015, and Mother filed a counterpetition in January 

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The children were all teenagers during the June 2016 modification trial at issue 

here and are now nineteen, eighteen, and fifteen, respectively. The agreed divorce 

decree provides that middle child R.C. has a disability and will not be capable of selfsupport.
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2016. The parties then went back to mediation. By March 2016, they had reached a 

partial settlement agreement, leaving the amount of Father’s child support (and other 

issues) to be determined by the trial court.

After more than four months of no employment, Father had another new job 

by mid-May 2016, and he wanted the trial court to reduce his monthly child support 

payments for the three children from $1,800 to $1,143 based on his new annual salary 

of $60,000. Conversely, Mother asserted that Father was intentionally 

underemployed, and she sought increased child support based on his earnings 

potential. After the June 2016 trial in which Father and Mother both testified, the 

trial court found that Father was intentionally underemployed in his field and ordered 

him to pay $2,267.54 per month in child support for the three children, with the 

monthly child support obligation to decrease to $1,889.62 when one child reached the 

age of eighteen or graduated from high school (whichever came later), married, 

enlisted, died, or had disabilities removed; and to $1,511.70 when a second child met 

one of those criteria.

In August 2017, more than a year after the trial, the trial court signed the final 

modification order, incorporating previously issued findings of fact. Father filed a 

timely motion for new trial, which the trial court denied, and Father then filed this 

appeal.

Father raises no issues in his brief regarding the trial court’s denial of his 

motion for new trial.
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FINDINGS OF FACT

The trial court issued the following findings of fact:

2. [Father]’s net resources per month are deemed . . . to be 

$7,433.48;

3. [Father] began employment with iWThealth on or about May 15, 

2016 earning a base salary of $60,000.00 per year. [He] is eligible 

for commissions through this employment, but, as of the date of 

the hearing, had not earned any commissions. [Father] testified 

that he is not actively seeking other employment.

4. [Father] was involuntarily terminated from his previous

employment effective December 31, 2015 and received $7,000 in 

severance.

5. [Father] was subsequently unemployed in January, February, 

March, April, and half of May 2016.

6. [Father] received unemployment compensation of 

$958.00 biweekly for the months of March, April and first two 

weeks of May 2016.

7. Between December 2015 and May 2016, [Father] applied for 

numerous jobs. He received one offer of employment for 100% 

commission and he rejected that offer. During such time period, 

he also engaged in day trading.

8. In 2015, [Father] sold a residence that he owned prior to his 

marriage to his current spouse and received a net amount of 

approximately $100,000.00 from such sale.

9. [Father] owns a condominium in Florida that is valued at

approximately $175,000.00 for [which he] states he receives no 

income.

10. [Father’s] employment with Medhost started in April 2015 and 

ended December 31, 2015. His salary for that period was 

$140,000.00 per year, plus commissions. In 2015, [Father] earned 

approximately $80,000.00 from his employment with Medhost.
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11. [Father]’s earnings for 2013 and the three previous years were 

approximately $150,000.00 in each year. In 2014, [he] earned over 

$140,000.00 in seven months of employment.

12. [Father] has worked in the health care sales industry since the date 

of the prior order.

13. [Father] has obtained a master’s degree since the date of the prior 

order.

14. The Court finds that [Father’s] actual income . . . is significantly 

less tha[n] what he could earn because of intentional 

underemployment. The Court finds that child support should be 

set based on [Father]’s earnings potential, which the Court finds 

to be $125,000.00 per year.

15. No evidence was admitted regarding [Mother’s] net resources . . . .

16. The percentage applied to [Father]’s net resources for child 

support is thirty percent (30%).

17. The amount of child support ordered by the Court is [computed] 

by applying the percentage guidelines contained in 154.125(a) to 

the amount of $125,000.00 being deemed to be [Father]’s earnings 

potential.

18. The amount of child support that the Court ordered, based on 

gross resources of $125,000.00, to be paid by [Father], beginning 

June 1, 2016, is as follows:

a. $2,230.04 per month for 3 children; and thereafter

b. $1,858.37 per month for 2 children; and thereafter

c. $1,486.70 per month for 1 child.2

19. The amount of child support that would be calculated if based on 

gross resources of $60,000 00 is as follows:

a. $1,145.86 per month for 3 children; and thereafter

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We note that these amounts are less than those actually ordered: $2,267.54 per 

month for 3 children; $1889.62 per month for 2 children; and $1,511.70 for 1 child. 

Father does not address these discrepancies.
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b. $954.88 per month for 2 children; and thereafter

c. $763.90 per month for 1 child[].

20. The amount of child support that the Court ordered [Father] pay 

for January, February, March, and April of 2016 is $467.00 for 

each month.

DISCUSSION

Father challenges the trial court’s modification in two issues: first, he contends 

that the trial court abused its discretion by finding that he was intentionally 

underemployed because the burden of providing evidence of intentional 

underemployment shifted to Mother, who provided none; and second, he contends 

that the trial court abused its discretion by departing from child support guidelines 

and ordering child support based on his potential earnings instead of his actual 

earnings.

I. We Review the Trial Court’s Decision for an Abuse of Discretion.

We review the trial court’s modification of child support for an abuse of 

discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A trial court abuses 

its discretion if it acts arbitrarily or unreasonably or does not analyze or apply the law 

properly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). In family law cases, whether the 

evidence supporting the trial court’s decision is legally and factually sufficient is 

relevant in deciding whether the trial court abused its discretion, In re P.S., 505 S.W.3d 

106, 109 (Tex. App.—Fort Worth 2016, no pet.), but a trial court does not abuse its 

discretion by basing its decision on conflicting evidence as long as some evidence 
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supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); In 

re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding); see In re E.P.C., 

381 S.W.3d 670, 688 (Tex. App.—Fort Worth 2012, no pet.) (en banc) (“The 

evidence . . . is obviously conflicting, but we do not resolve the conflicts, for that is 

within the factfinder’s province.”).

II. For a Trial Court to Modify Child Support, the Modification Must Be in 

the Child’s Best Interest and the Child, Conservator, or Other Party Must 

Have Experienced Materially and Substantially Changed Circumstances.

Generally, as applicable here, a court with continuing, exclusive jurisdiction 

over matters involving a child may modify a child support order if “the circumstances 

of the child or a person affected by the order have materially and substantially 

changed” and if the modification is in the child’s best interest. Tex. Fam. Code Ann. 

§§ 156.001, 156.402 (West 2014), § 156.401(a) (West Supp. 2018); Reagins v. Walker, 

524 S.W.3d 757, 761 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Iliff, 

339 S.W.3d at 81 (“[I]n child support decisions, the ‘paramount guiding principle’ of 

the trial court should always be the best interest of the child.”). Both parents alleged a 

material and substantial change of circumstances in their pleadings. The children’s 

best interests were at issue, with Father claiming his requested reduction3 was in their 

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Father’s amended petition does not explicitly request a reduction in his current 

child support obligation; however, his motion to enter the agreed order and his 

summary of requested relief as to child support make clear that he wanted child 

support to be reduced based on the job he began in May 2016.
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best interests and Mother claiming her requested increase in child support would 

serve the children’s best interest.

III. A Trial Court May Base Child Support on an Obligor’s Earnings 

Potential If He Is Intentionally Underemployed.

If a child-support obligor’s actual income “is significantly less” than his 

earnings potential “because of intentional unemployment or underemployment,”

section 154.066(a) of the Texas Family Code allows the trial court to apply child 

support guidelines to an obligor’s earnings potential instead of his actual income when 

determining child support. Tex. Fam. Code Ann. § 154.066(a) (West 2014); Iliff, 

339 S.W.3d at 81. As the Supreme Court of Texas has explained,

The law has long recognized parents have a legal duty to support 

their children during their minority. A parent who is qualified to obtain 

gainful employment cannot evade his or her child support obligation by 

voluntarily remaining unemployed or underemployed. Concurrently, the 

court must consider “a parent’s right to pursue his or her own 

happiness” with a parent’s duty to support and provide for his or her 

child. 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. Once the obligor has offered proof of his or 

her current wages, the obligee bears the burden of demonstrating that 

the obligor is intentionally unemployed or underemployed. The burden 

then shifts to the obligor, if necessary, to offer evidence in rebuttal.

. . . . Although some financial resources are indispensable to 

raising and providing for a child, the financial analysis will often not be 

the end of the court’s consideration. A court properly considers the 

obligor’s proffered rebuttal evidence of the reasons for an obligor’s 

intentional unemployment or underemployment. This includes such 

laudable intentions by obligors who alter their employment situations to 

spend more time with their children, to live closer to their children in 

order to attend their events and be more involved in their lives, or to 

provide their children with better health benefits. Other objectives are 
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also factors, such as whether an obligor alters his or her employment 

situation to start a new business, to gain further education, to become a 

public servant, or to address health needs. An active but unfruitful 

pursuit of employment may also be relevant to the court’s child support 

determination, as well as economic conditions that legitimately preclude 

full employment. But, we are mindful that such explanations are not 

always sincere, and the judge as fact finder has latitude to consider the 

testimony and evidence to make the necessary determinations. Such 

discretion must be exercised within the limits set by the Texas Family 

Code, particularly Chapter 154 including the child support guidelines, 

and should always focus on the best interest of the child. To facilitate 

appellate review and to encourage consistency in the exercise of this 

discretion across the state, the trial court must make a finding of 

intentional unemployment or underemployment and its decision to base 

child support on earnings potential rather than actual earnings must be 

supported by the record.

Iliff, 339 S.W.3d at 81–82 (citations and footnotes omitted). Although Iliff did not 

involve a modification and section 154.066 does not appear in the modification 

chapter of the Texas Family Code, the Iliff Court recognized that “the same 

intentional unemployment/underemployment analysis under section 154.066 may be 

applied in both original child support orders and modifications . . . .” Id. at 81 n.5; see

Tex. Fam. Code Ann. § 156.402; Reddick v. Reddick, 450 S.W.3d 182, 187 (Tex. App.—

Houston [1st Dist.] 2014, no pet.); Coburn v. Moreland, 433 S.W.3d 809, 832–33 & 

n.23 (Tex. App.—Austin 2014, no pet.).

IV. The Trial Court’s Finding that Father Is Intentionally Underemployed Is 

Supported by Factually Sufficient Evidence.

In his first issue, Father contends that the trial court abused its discretion by 

finding that he is intentionally underemployed when Mother failed to put on evidence 
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demonstrating his intentional underemployment. In essence, Father challenges the 

factual sufficiency of the evidence supporting the finding.

A trial court’s findings of fact have the same force and dignity as a jury’s 

answers to jury questions and are reviewable for legal and factual sufficiency of the 

evidence to support them by the same standards. Catalina v. Blasdel, 881 S.W.2d 295, 

297 (Tex. 1994); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see 

also MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009). 

When the appellate record contains a reporter’s record, findings of fact on disputed 

issues are not conclusive and may be challenged for the sufficiency of the evidence. 

Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Allison v. Conglomerate 

Gas II, L.P., No. 02-13-00205-CV, 2015 WL 5106448, at *6 (Tex. App.—Fort Worth 

Aug. 31, 2015, no pet.) (mem. op.). We defer to unchallenged findings of fact that are 

supported by some evidence. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 

437 S.W.3d 518, 523 (Tex. 2014).

When reviewing an assertion that the evidence is factually insufficient to 

support a finding, we set aside the finding only if, after considering and weighing all of 

the evidence in the record pertinent to that finding, we determine that the credible 

evidence supporting the finding is so weak, or so contrary to the overwhelming 

weight of all the evidence, that the answer should be set aside and a new trial ordered. 

Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 

709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
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The factfinder is the sole judge of the credibility of the witnesses and is 

responsible for resolving conflicts in the evidence, weighing the evidence, and 

drawing reasonable inferences from basic facts to ultimate facts. City of Keller v. Wilson,

168 S.W.3d 802, 819 (Tex. 2005); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex.

2004); Walker v. Walker, No. 02-13-00229-CV, 2014 WL 2619147, at *1 (Tex. App.—

Fort Worth June 12, 2014, pet. denied) (mem. op.).

Father correctly contends that his lower annual pay alone does not allow us to 

presume his intentional underemployment. After Father put on evidence that he 

earns $60,000 annually at his new job at iWT Health, which “deals in workflow, in 

[the] space that [he has] served in for most of [his] healthcare career,” Mother had the 

burden to shown that Father’s actual current earnings are “significantly less than his 

earnings potential,” Trumbull v. Trumbull, 397 S.W.3d 317, 321 (Tex. App.—Houston 

[14th Dist.] 2013, no pet.) (internal quotation marks omitted), and that he is 

intentionally underemployed. Tex. Fam. Code Ann. § 154.066; Iliff, 339 S.W.3d at 81–

82. Mother satisfied her burden.

First, Mother elicited testimony through cross-examination of Father, the trial 

court admitted Mother’s proffered exhibits, and Father answered the trial court’s 

unobjected-to questions, all of which supported the trial court’s unchallenged findings 

that Father earned:

• approximately $80,000 for about eight months of work in 2015;

• $140,000 for only seven or eight months of work in 2014;
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• $150,000 in 2013; and

• $150,000, including commissions, during the prior three years when he 

worked for Quantros.

Second, as the trial court pointed out, there was no evidence of “any sort of 

industry downturn or that the industry [Father’s] in is shutting down. He doesn’t 

work in the oil and gas industry or anything of that nature.” Third, Father testified on 

cross-examination that he received only one other offer, which was for an allcommission sales position requiring frequent travel, before taking his current job and 

that the current job is only “slightly different” than the jobs he held in the previous 

several years when he was earning more than double his current salary. Fourth, while 

Father testified that he “would absolutely consider” an offer paying substantially more 

money for a “dream job” if it came along, he admitted he was not currently looking 

for a different job.

Fifth, Father also admitted on cross-examination that the $100,000 he netted 

from the sale of his separate property home in 2015 ultimately went toward the new 

home he purchased with his current wife.

Sixth, while Father testified that child support computed under his current 

salary was in the children’s best interest—a claim Mother disputed in her testimony—

he also admitted that:

• the three children were teenagers;

• the then seventeen-year-old daughter was “involved in many activities”;
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• the then sixteen-year-old daughter is severely disabled, functions like an 

eighteen-month-old, and is “needy”; and

• with standard possession during the school year, Mother physically 

possesses the children the majority of the time.

We hold that Mother therefore satisfied her burden to prove that Father’s 

current income is significantly less than his earnings potential and that he is 

intentionally underemployed. The trial court as factfinder could have inferred that 

Father’s months-long job search before accepting his current position was not as 

intensive as it should have been, and no evidence indicated that Father’s pursuit of his 

own happiness justifiably outweighed his duty to provide for his three teenagers, one 

of whom has special needs. See Iliff, 339 S.W.3d at 82. The evidence is sufficient to 

support the challenged finding; consequently, the trial court did not abuse its 

discretion by finding that Father is intentionally underemployed. We overrule 

Father’s first issue.

V. The Trial Court Correctly Applied the Child Support Guidelines to 

Father’s Potential Earnings to Establish His Child Support Obligation.

In his second issue, Father contends that the trial court abused its discretion by 

establishing child support based on his potential earnings instead of his actual income 

and by not following the child support guidelines. Because we have upheld the trial 

court’s finding that Father is intentionally underemployed, we hold that the trial court 

did not abuse its discretion by computing child support based on his potential 

earnings. See Tex. Fam. Code Ann. § 154.066(a); Iliff, 339 S.W.3d at 81.
14

Further, as the trial court found, it followed the child support guidelines, basing 

child support on Father’s earnings potential of $125,000 a year:

I base that on the fact that when I go back and average his annual 

incomes from the employment that I’ve been given evidence of, it is 

somewhere there in that neighborhood. And I think he has the 

capability of getting a job that would pay that amount. He’s always done 

that in the past until recently. And so that is what I believe that he could

do.

Taking Father’s salaries for 2010 through 2015, he earned about $150,000 for 

the first four years, his partial-year earnings for 2014 reflected a yearly gross salary 

potential of about $210,000, and his partial-year earnings for 2015 reflected a yearly 

gross salary potential of $120,000. Adding those six amounts and dividing by six years 

yields an average annual income potential of $155,000, and that does not take into 

consideration the $100,000 net proceeds from the sale of his separate property home 

in 2015. Accordingly, we hold that the trial court did not abuse its discretion by 

applying the child support guidelines to Father’s potential earnings of $125,000, and 

we overrule his second issue. See Tex. Fam. Code Ann. § 154.066(a); Coburn, 

433 S.W.3d at 835.

CONCLUSION

Having overruled Father’s two issues, we affirm the trial court’s judgment.
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/s/ Mark T. Pittman

Mark T. Pittman

Justice

Delivered: October 25, 2018