Opinion issued February 27, 2024

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-22-00605-CV

———————————

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).
2

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 
3

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).
4

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 childcustody 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 
5

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).
7

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 
8

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 childsupport 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 
9

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-theevidence 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 childsupport 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 
15

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.