With an unemployment rate nationally at its highest in years, it’s getting harder and harder to discern whether underemployment is a viable theory of recovery amidst this recession. Intentional underemployment almost sounds like a criminal act- it harkens back to the mind state required for certain crimes to prove intent prior to committing them.
Did Dad intend to lower his child support obligation? Was that alleged pink slip the result of a nod and nudge from his boss to help him reduce his expenses (i.e., supporting his children)?
The requisite intent, or lack thereof, to be underemployed or unemployed for the purpose of determining child support award may be inferred from such circumstances as the parent’s education, economic adversities, business reversals, business background and earning potential. See Garner v. Garner, 200 S.W.3d 303, 306-7 (Tex.App.—Dallas 2006, no pet.).
Likewise, In re Marriage of Hamer found underemployment when the obligor voluntarily ended prior employment, took lesser paying jobs and opted to remain in lesser paying jobs despite the needs of his offspring. 906 S.W.3d 263, 267 (Tex.App.—Amarillo 1995, no writ).
Conversely, in an older 1991 case, Belcher v. Belcher, mom was not found to be intentionally underemployed because she was improving herself educationally so that she could hold a better, permanent job. Because her unemployment was for a finite period of short duration while she completed her education, the evidence showed that she intended to maintain a job as soon as she received her teaching certificate. Belcher v. Belcher, 808 S.W.3d 2020, 208 (Tex. App.—El Paso, 1991, no writ, overruled on other grounds, Rodriguez v. Rodiguez, 860 S.W. 3d 414 (Tex. 1993).
Under Texas Family Code Section 154.066, if the earning potential of the obligor is greater than the actual income, because the obligor is intentionally underemployed to avoid child support payments, a trial court can apply child support guidelines to that of his or her earning potential. Two recent cases, McLane v. McLane, 263 S.W.3d 358 (Tex.App.-Houston [1st Dist.] 2008 (pet. denied), and In re A.B.A.T.W., 266 S.W.3d 580 (Tex.App.—Dallas, 2008, no pet), found that the award of increased child support was appropriate due to father’s intentional underemployment. In the latter case, the Court looked to dad’s advanced degrees, his credibility about his job search, and his outward lifestyle before and after the divorce proceedings. There are no current cases mandating that a petitioner affirmatively plead for underemployment as relief requested. However, the cases cited herein illustrate the types of evidence proffered to make such a finding.
Ultimately while the Texas Family Code Section 154.123 provides seventeen (17) additional factors for the Court to consider when awarding child support outside of strict percentage guidelines, Section (5) is on point to intentional underemployment. The Court may consider: “the amount of the obligee’s net resources, including the earning potential of the oblige if the actual income of the oblige is significantly less than what the oblige could earn because the oblige is intentionally unemployed or underemployed and including an increase or decrease in the income of the oblige or income that may be attributed to the property and assets of the obligee.”
So, in the end, while we don’t want to kick a man while he’s down, we want our fair share of what there is or what should have been there (in a better economy?).