                                     NUMBER 13-09-00703-CV

                                     COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


           IN THE MATTER OF THE MARRIAGE OF AMY LASSMANN
                   AND CHARLES A. LASSMANN, JR. AND
                   IN THE INTEREST OF C. J. L., A CHILD


                          On appeal from the 24th District Court
                               of Victoria County, Texas.


                    DISSENTING MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
          Dissenting Memorandum Opinion by Justice Yañez

       I agree with the majority’s finding that the trial court erred in (1) holding that Charles

was voluntarily unemployed and (2) considering such voluntary unemployment as a factor

in the determination of child support.1 However, I disagree with the majority’s conclusion

that the trial court was free to consider other factors—including Charles’s earning

potential—and therefore, did not abuse its discretion in calculating Charles’s child support

obligation. Accordingly, I respectfully dissent.

       1
           See T EX . F AM . C OD E A N N . § 154.066 (Vernon 2008).
                                        I. Majority’s Decision

       In support of its argument that the trial court had discretion to base Charles’s child

support obligation on his earning potential, the majority cites Pharo v. Trice2 and Wetzel

v. Wetzel.3 I find both cases distinguishable.

       As the majority notes, the Pharo court observed that a court “may take a parent’s

earning potential into account when determining the amount of child support the parent

must pay”; however, it also noted that a parent cannot avoid a child support obligation by

voluntarily remaining unemployed.4 The court found that Pharo, the child support oligor,

had sufficient earning potential to pay her $500 monthly child support obligation because,

although she was unemployed and received monthly income of only $150 to $200 from an

oil investment, she also received funds from a trust sufficient to pay a full-time babysitter

$800 per month and all of her own and her daughter’s medical expenses.5 Thus, the

court’s holding that the trial court did not abuse its discretion in awarding the $500 child

support obligation was not based on Pharo’s “earning potential,” but on income she was

actually receiving from a trust.6

       Similarly, the Wetzel court asserted that although the trial court could have—and

may have—considered the appellant’s earning potential, the trial court did not abuse its

discretion in ordering appellant to pay $150 per month in child support because there was




       2
           711 S.W .2d 282, 284 (Tex. App.–Dallas 1986, no writ).

       3
           514 S.W .2d 283, 285 (Tex. Civ. App.–San Antonio 1974, no writ).

       4
           Pharo, 711 S.W .2d at 284.

       5
           Id.

       6
           Id.

                                                     2
evidence that appellant received over $500 per month from his oil and rental property.7

Thus, as in Pharo, the appellate court’s holding was not based on appellant’s “earning

potential,” but on income he was actually receiving.8

                                                 II. Discussion

         Section 154.062 of the family code provides that a court “shall calculate net

resources for the purpose of determining child support liability as provided by this section.”9

“Resources” are defined to include, among other things, “100 percent of all wage and

salary income and other compensation for personal services” and “all other income actually

being received.”10 In the present case, although we may not presume that an incarcerated

person has no assets on which to base a child support award,11 it is uncontroverted that

Charles is not receiving income and has no other assets on which to base a child support

award.

         Section 154.066 of the family code allows the trial court to apply the support

guidelines to the earning potential of an obligor, rather than actual income, if the obligor

is intentionally unemployed or underemployed.12 The trial court held that Charles was


         7
             W etzel, 514 S.W .2d at 285.

         8
             See id.

         9
             See T EX . F AM . C OD E A N N . § 154.062(a) (Vernon Supp. 2009).

         10
              Id. § 154.062(b)(1), (5) (em phasis added).

        11
              See In re B.R.G., 48 S.W .3d 812, 819 (Tex. App.–El Paso 2001, no pet.).

        12
            See T EX . F AM . C OD E A N N . § 154.066 (Vernon 2008) (em phasis added); see also In re Z.P.B., 109
S.W .3d 772, 783 (Tex. App.–Fort W orth 2003, no pet.) (“Thus, a court may take a parent’s earning potential
into account when determ ining the am ount of child support the parent m ust pay. A parent who is qualified to
obtain gainful em ploym ent cannot evade his or her support obligation by voluntarily rem aining unem ployed.”)
(internal citations om itted); Giangrosso v. Crosley, 840 S.W .2d 765, 770 (Tex. App.–Houston [1st Dist.] 1992,
no writ) (“Thus, a court m ay take a parent's earning potential into account when determ ining the am ount of
child support the parent m ust pay. A parent who is qualified to obtain gainful em ploym ent cannot evade his
or her support obligation by voluntarily rem aining unem ployed.”) (internal citations om itted); Powell v. Powell,
721 S.W .2d 394, 396 (Tex. App.–Corpus Christi 1986, no writ) (“The court m ay, therefore, take a parent's

                                                           3
voluntarily unemployed and based the child support order on the $26 hourly wage which

reflects Charles’s earning potential. However, the majority concluded—and I agree—that

because Charles was not intentionally unemployed, the trial court erred in relying on

section 154.066. Even though the majority concedes that the trial court could not have

properly based the child support obligation on Charles’s earning potential as an

intentionally unemployed person, it nonetheless finds that the trial court properly based the

award on Charles’s earning potential, instead of income he was actually receiving. I would

find, however, that the only evidence before the court of Charles’s wage and salary income

was his earning potential (prior wage), which the trial court could not have properly

considered because he was not intentionally unemployed. In such circumstances, “in the

absence of evidence of the wage and salary income of a party,” the trial court “shall” apply

the presumption that Charles had wages or salary equal to the federal minimum wage.13

        In Smith v. Smith, this Court held in a memorandum opinion that the trial court did

not abuse its discretion in awarding child support based on the federal minimum wage,

where the obligor was in prison and there was no evidence of his earned income.14

Similarly, the El Paso court held that the trial court did not abuse its discretion in basing a

child support award on the minimum wage presumption, where the obligor was in prison

and there was no evidence regarding his resources.15 The Waco court has also found that


earning potential into account when determ ining the am ount of child support the parent m ust pay. A parent
who is qualified to obtain gainful em ploym ent cannot evade his or her support obligations by voluntarily
rem aining unem ployed.”) (internal citations om itted).

        13
          See T EX . F AM . C OD E A N N . § 154.068 (Vernon 2008) (“In the absence of evidence of the wage and
salary incom e of a party, the court shall presum e that the party has wages or salary equal to the federal
m inim um wage for a 40-hour week.”).

         14
            Smith v. Smith, No. 13-03-508-CV, 2005 Tex. App. LEXIS 4080, at **14-15 (Tex. App.–Corpus
Christi May 26, 2005, no pet.) (m em . op.).

        15
             See In re B.R.G., 48 S.W .3d at 819.

                                                      4
where there was no evidence to establish the obligor parent’s net resources while

incarcerated, the trial court did not abuse its discretion in basing its child support award on

the minimum wage presumption.16

        The majority asserts that I “overlook” the provision that grants a trial court “broad

discretion” in determining child support awards.17 I respectfully disagree. The trial court’s

“broad discretion” is fettered by the provisions in the family code. The majority asserts that

even though Charles was not voluntarily unemployed or underemployed, his “earning

potential” may nevertheless be taken into account in determining his child support

obligation. In support of this proposition, the majority cites only Pharo and Wetzel.18 As

noted above, in both cases, the court relied on income actually being received by the

obligor, not “earning potential.”

        Although the majority asserts that it “find[s] no authority to support the contention

that earning potential should only be considered in cases of voluntary unemployment,” it

cites no authority for the proposition that earning potential may be considered in

circumstances where the obligor is neither voluntarily unemployed nor voluntarily

underemployed and there is no evidence of income actually being received by the obligor.

In such circumstances, I submit, the federal minimum wage presumption is applicable. 19




        16
            See Reyes v. Reyes, 946 S.W .2d 627, 630 (Tex. App.–W aco 1997, no writ); see also In re N.H.P.
v. Prudhomme, No. 05-04-009-CV, 2004 Tex. App. LEXIS 10976, at *5 (Tex. App.–Dallas Dec. 7, 2004, no
pet.) (m em . op.) (holding that where only evidence was that obligor was unem ployed, trial court properly
applied m inim um wage presum ption); In re Moss, 887 S.W .2d 186, 188 (Tex. App.–Texarkana 1994, writ
ref’d) (holding where no evidence of obligor’s incom e, trial court should apply m inim um wage presum ption).

        17
             See T EX . F AM . C OD E A N N . § 154.123 (Vernon 2008).

        18
             See Pharo, 711 S.W .2d at 284; W etzel, 514 S.W .2d at 285.

        19
             See T EX . F AM . C OD E A N N . § 154.068.

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                                       III. Conclusion

       I would hold that in the present case, there was no evidence of Charles’s wage and

salary income, and that the trial court should therefore have applied the federal minimum

wage presumption in calculating the child support award.20 Accordingly, I would: (1) hold

that the trial court abused its discretion; (2) reverse the trial court’s award of child support;

and (3) remand for further proceedings.



                                                           LINDA REYNA YAÑEZ
                                                           JUSTICE

Delivered and filed the
25th day of August, 2010.




       20
            See id.

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