What is intentional underemployment?
Bob has a child with Mary. Bob makes $10,00,000 a year as a professional baseball player. Mary takes Bob to court for child support. Bob is in his baseball prime and could still play if he wanted. But Bob decides to retire from baseball and take up a job as a Tik Tok dancer that pays $10,000 a year.
Bob believes that Texas child support calculations are based on income. Bob is mad about having to pay child support and wants to reduce the amount he pays to Mary. Bob thinks he would pay much less in child support on $10,000 a year vs $10,000,000.
However, Mary has an attorney who argues to the court that Bob is “intentionally underemployed” and should pay a higher rate. The Judge agrees and orders Bob to pay child support as if he was making $10,000,000 a year, not his actual salary of $10,000 based on Bob’s “earning potential”.
What is intentional underemployment (IU)?
Great question. Let’s go to the Texas Family Code, section 154.066(a). This law states that if a parent earns “significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor.” Tex. Fam. Code § 154.066(a).
How do that work in court?
We’ve got some case law to guide us. Courts are required to “engage in a fact-intensive, case-by-case determination to decide whether child support should be set based on earning potential, as opposed to actual earnings.” Iliff, 339 S.W.3d at 82.
Ok. So that tells us family law trial courts are not guided by any simple formula or test to determine if international underemployment applies. So if you are arguing for IU, or against IU, you need to have facts to back up your arguments. Bob would make the first move here, with proof of his current wages. Then it would go to Mary to demonstrate Bob is IU. This can be done through testimony by Bob, and proof of his past earnings, and proof he could work at a higher wage. A finding of IU by the trial court must be supported by the evidence presented in court.
Can you appeal a trial court’s finding of intentional underemployment?
Yes. You can file an appeal from a child support order. The appellate court will review the trial judge’s decision under an abuse of discretion standard. What is an abuse of discretion by the trial court on child support? A trial court abuses its discretion if it “acts arbitrarily, unreasonably, or without reference to any guiding rules or principles.” Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). That’s a difficult burden to meet. This means if your strategy on a child support issue to appeal you may want to rethink it. Decisions made by trial judges on child support are difficult to overturn on appeal.