Father's college enrollment was not effort to lower child support

Under Texas law, if the actual income of a parent is significantly less than what the parent could earn-either due to intentional unemployment or underemployment-the court may decide to apply child support guidelines based on the earning potential of the parent.

However, what if the parent's income has reduced due to a legitimate activity, such as returning to college? In the case of In re E.M.Z., the Texas Court of Appeals considered this question.

A father returns to college

After a two-year relationship, the mother and father separated prior to the birth of their child. The parents agreed that they would be the joint managing conservators of the child-that is, that they would have "joint" child custody-with the mother having primary physical custody.

The court ordered the father to pay approximately $200 per month in child support. The mother appealed this decision, arguing that because the father had decided to return to college full-time to earn a second degree in physical therapy, he was intentionally underemployed.

Was going to college intentional unemployment?

The mother pointed to the father's testimony that as a fitness trainer, he had earned an average annual income of approximately $35,000 for the past three years. She argued that the court had abused its discretion by basing the child support award on the lower amount of his actual income as a full-time college student.

The Texas Court of Appeals noted that a trial court has discretion to set child support within the parameters provided by Texas law. This means that a trial court "may" apply child support guidelines to a parent's earning potential, but "may" is permissive and discretionary.

Here, the mother worked as a pharmacist and earned a yearly salary of $120,000. The trial court was entitled to consider the respective abilities of the parents to offer support, and considering the mother's financial resources was appropriate. In addition, the court was allowed to consider the father's testimony that he had returned to college to increase his future earning potential, a laudable goal.

Therefore, the trial court had not abused its discretion and its decision had been properly guided by the principle of the best interest of the child.

Carefully assessing your situation

If you are considering a modification to your child support arrangement, whether you are a parent seeking to increase a payment or trying to avoid it, you need an attorney who understands the way Texas courts apply the child support guidelines. Seek an experienced family law attorney who can assess your situation and determine the best way to proceed.