                             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.


                          MEMORANDUM OPINION

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

       By one issue, appellant Charles A. Lassmann, Jr., contends that the trial court

abused its discretion when it based his child support obligation on his income-earning

potential prior to his incarceration. We affirm.

                                      I. BACKGROUND

       After being released from prison on parole, Charles married Amy Lassmann on
April 29, 2004. Charles later adopted Amy’s daughter, C.J., from a prior relationship.1 In

January of 2009, Charles was incarcerated in the Nueces County Jail for assaulting Amy.

During his incarceration, Charles’s parole was revoked due to the assault on Amy and also

for a driving-while-intoxicated offense. Charles is not scheduled to be released from prison

until 2013.

       On June 22, 2009, Amy filed for divorce. The trial court held a hearing on the

divorce on October 26, 2009. Charles, due to his incarceration, did not attend but was

represented by counsel. At the hearing, the court heard testimony to determine a child

support award for C.J., who was fifteen years old at the time.2 Amy testified that, prior to

his incarceration, Charles worked at various oil companies as a directional driller earning

$26.00 per hour, and that he earned more when he worked overtime. Amy also testified

that Charles did not own any real property; that creditors repossessed his pickup truck and

motorcycle; and that they had numerous community debts, including $4,000 owed to the

IRS for penalties associated with the tax years 2006 and 2007.

       Amy asked the trial court to base Charles’s child support obligation on his earning

potential—the $26.00 per hour wage he had earned prior to being incarcerated for

committing assault. She argued that this award was appropriate because Charles was

voluntarily “underemployed” by committing an offense which led to his incarceration.

However, Charles’s attorney argued that child support should be based on the federal

minimum wage because Charles was incarcerated prior to the divorce proceedings and

had no income-earning ability or other financial assets, as evidenced by the testimony on



       1
           To protect the privacy of the m inor child, we refer to her by her initials. See, e.g., T EX . R. A PP . P.
9.8.

       2
           Am y testified that C.J. would turn sixteen in Decem ber of 2009.

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his debts. Charles’s attorney further argued that Charles would continue to be incarcerated

until 2013 and claimed that his continued employment as an oil driller was speculative.

       The trial court granted the divorce and ordered a child support obligation in the

amount of $686.00 per month based upon the $26.00 per hour wage. The trial court

considered, among other things, that predicating child support on Charles’s prior earnings

was appropriate because, although Charles was incarcerated five months before Amy

initiated divorce proceedings, “[he] was the one that committed the assault and put himself,

voluntarily, being at the situation where he is at.” This appeal followed.

                                       II. DISCUSSION

A.     Standard of Review and Applicable Law

       A trial court has broad discretion to determine child support awards within the

guidelines of the family code. TEX . FAM . CODE ANN . § 154.121 (Vernon 2008); Reyes v.

Reyes, 946 S.W.2d 627, 629 (Tex. App.–Waco 1997, no pet.).                “However, as the

guidelines are merely advisory, the Code also allows the trial court the discretion to set a

child support order outside the guidelines.” Reyes, 946 S.W.2d at 629. An order regarding

child support will not be overturned unless the trial court clearly abused its discretion.

Rodriguez v. Rodriguez, 860 S.W.2d 414, 415 (Tex. 1993). The test for abuse of discretion

is whether the trial court acted without reference to any guiding rules or principles, or, in

other words, whether the act was arbitrary or unreasonable. See Worford v. Stamper, 801

S.W.2d 108, 109 (Tex. 1990). In this case, the trial court made no findings of fact, and

Charles requested none. See TEX . R. CIV. P. 296, 297. “Therefore, we assume the trial

court found all facts to support the judgment, and we will affirm the judgment if there is any

legal theory supported by the record to justify it.”   See In re M.M., 980 S.W.2d 699, 700

(Tex. App.–San Antonio 1998, no pet.) (citing Southwest Livestock & Trucking Co. v.

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Dooley, 884 S.W.2d 805, 807-08 (Tex. App.–San Antonio 1994, writ denied)).

       For purposes of determining child support liability, the trial court shall calculate net

resources, including all wage and salary income and other compensation for personal

services, interest, dividends and royalty income, self-employment income, net rental

income, and all other income actually being received. TEX . FAM . CODE ANN . § 154.062(a),

(b) (Vernon Supp. 2009). In the absence of evidence of the wage and salary income of a

party, the court shall presume that the party has wages or salary equal to the federal

minimum wage for a forty-hour week. Id. § 154.068 (Vernon 2008).

       Section 154.066 of the Texas Family Code provides that a trial court may order a

parent to pay more child support than the guidelines indicate if the parent could potentially

earn more money but has intentionally chosen not to. Id. § 154.066 (Vernon 2008); Reyes,

946 S.W.2d at 629. To make a finding of intentional underemployment or unemployment,

there must be evidence that the parent reduced his income for the purpose of decreasing

his child support payment. See Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex. App.–Corpus

Christi 2002, no pet.); In re P.J.H., 25 S.W.3d 402, 405 (Tex. App.–Fort Worth 2000, no

pet.). The requisite intent, or lack thereof, to be underemployed or unemployed for the

purpose of determining a child support award may be inferred from such circumstances

as the parent’s education, economic adversities, business reversals, business background,

and earning potential. Zorilla, 83 S.W.3d at 253 (citing In re Davis, 30 S.W.3d 609, 617

(Tex. App.–Texarkana 2000, no pet.)).

B.     Voluntary Unemployment

       The issue of whether incarceration can be characterized as “voluntary

unemployment” has been discussed, but never decided, by several appellate courts. See

In re M.M., 980 S.W.2d at 701 n.2; Reyes, 946 S.W.2d at 629; Hollifield v. Hollifield, 925

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S.W.2d 153, 156 (Tex. App.–Austin 1996, no writ); see also Slaughter v. Slaughter, No.

13-99-497-CV, 2001 Tex. App. LEXIS 2783, at **6-8 (Tex. App.–Corpus Christi 2001, pet.

denied) (mem. op., not designated for publication). For example, in Hollifield, the Austin

Court of Appeals noted the following:

        Appellant also maintains that his incarceration cannot be characterized as
        “voluntary.” Appellant contends that while he might have intentionally or
        voluntarily committed a crime, he hardly intended to get caught or
        volunteered to go to prison . . . . Assuming, without deciding, that appellant
        was in fact involuntarily unemployed, this fact alone would not require the
        trial court to rescind appellant’s support obligations. In addition to appellant’s
        unemployment, the court was entitled to consider the nature of his
        crime . . . , the financial status of his children, as well as their special
        needs . . . .

925 S.W.2d at 156.3

        Here, the trial court held that Charles was voluntarily unemployed because he

“voluntarily” assaulted Amy. We do not believe, however, that this is a case of voluntary

unemployment because the child support order at issue was not in place at the time

Charles committed the assault. In fact, Charles was incarcerated five months before Amy

filed for divorce, and nine months before the divorce hearing where the child support award

was determined. There is no evidence that Charles had any “intent” to be underemployed

or unemployed for the purpose of decreasing a child support award. See Zorilla, 83

S.W.3d at 253. We hold that the trial court erred by considering voluntary unemployment

as a factor in the determination of Charles’s child support obligation.




        2
          W e recognize that Hollifield deals with the m odification, rather than the initial issuance, of a child
support order. However, trial courts have wide discretion in considering both issues. See Reyes v. Reyes,
946 S.W .2d 627, 629 (Tex. App.–W aco 1997, no pet.) (holding that trial courts have broad discretion in
determ ining child support awards); Friermood v. Friermood, 25 S.W .3d 758, 760 (Tex. App.–Houston [14th
Dist.] 2000, no pet.) (concluding that the court retains the sam e broad discretion for child support m odification
orders).


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C.      Other Factors in Child Support Consideration

        Notwithstanding the above analysis, we cannot say that the trial court abused its

discretion when it based the child support order on the $26 per hour wage. Trial courts

consider several factors, not just voluntary unemployment or underemployment, to

determine child support. Notably, section 154.123(b)(17) of the family code allows trial

courts to deviate from the guidelines for “any other reason consistent with the best interest

of the child, taking into consideration the circumstances of the parents.” See TEX . FAM .

CODE ANN . § 154.123(b)(17) (Vernon 2008).4

        The record here demonstrates that the court considered evidence on other relevant

issues to support the judgment. Hollifield, 925 S.W.2d at 156; see TEX . FAM . CODE ANN .

§ 154.123 (Vernon 2008) (delineating seventeen additional factors courts should consider

in determining child support).          For example, the court heard that Charles: (1) was an

experienced directional driller who had worked for several drilling companies in the area;

(2) regularly worked overtime as a driller, which supplemented his income; (3) earned

similar wages at all of the drilling companies for which he had worked; and (4) was

scheduled to be released from prison in 2013. We note that the court pointed out to Amy

that she would be able to “enforce child support when [Charles] gets out.” The ability to

collect an arrearage is a recognized consideration in child support cases. In re M.M., 980

S.W.2d at 701; see also Slaughter, 2001 Tex. App. LEXIS 2783, at *8. “[A]lthough [the

obligor] may not be able to make support payments now, the assessment makes it possible

. . . to collect arrearages, should his financial condition improve in the future.” In re M.M.,

980 S.W.2d at 701. We also note that C.J. was nearly sixteen at the time of the hearing.


        4
         The dissent overlooks this provision which gives the trial court broad discretion in determ ining child
support awards.

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The trial court could have considered that Charles’s support obligation would be limited to

two years only, when C.J. reached the age of majority. All of these factors supported the

court’s child support award for C.J. Id. at 700.

        Charles argues his child support obligation “should be based upon a [forty] hour

work week at the federal minimum wage because [the] evidence presented shows that

[Charles] is incarcerated . . . , has no employment or earning ability, has no assets, and is

in debt.” In other words, Charles claims that he is not “actually receiving” any income upon

which to base a child support order. See TEX . FAM . CODE ANN . § 154.062(b)(5) (Vernon

Supp. 2009). However, although trial courts may presume that a party earns the minimum

wage for a forty-hour work week in the absence of evidence regarding an obligor’s

resources, see id. § 154.068 (Vernon 2008), here there was testimony regarding Charles’s

earning potential.5 Courts may take a parent's earning potential into account when

determining the amount of child support the parent must pay. See generally Pharo v.

Trice, 711 S.W.2d 282, 284 (Tex. App.–Dallas 1986, no writ); Wetzel v. Wetzel, 514

S.W.2d 283, 285 (Tex. Civ. App.–San Antonio 1974, no writ). “The duty to support is not

limited to a parent’s ability to pay from current earnings, but extends to his or her financial

ability to pay from any and all sources that might be available.” Pharo, 711 S.W.2d at 284.

In light of the foregoing, the trial court was under no obligation to resort to the minimum

wage presumption in the family code.6


        5
         The dissent holds that Charles’s $26 per hour earning potential should not be considered “evidence,”
as we have determ ined that Charles was not voluntarily unem ployed. This lack of evidence, they argue,
should therefore trigger the m inim um wage presum ption in section 154.068. See T EX . F AM . C OD E A N N . §
154.068 (Vernon 2008). However, we find no authority to support the contention that earning potential should
only be considered in cases of voluntary unem ploym ent.

        6
         W e also note that there is no legal presum ption that an inm ate has no assets. See In re A.P., 46
S.W .3d 347, 359 (Tex. App.–Corpus Christi 2001, no pet.); see also Koenig v. DeBerry, No. 03-09-00252-CV,
2010 Tex. App. LEXIS 1926, at **15-16 (Tex. App.–Austin Mar. 17, 2010, no pet.) (m em . op.). Such a
presum ption “would not be in the best interests of children and parents seeking child support.” In re M.M.,

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        We cannot conclude that the trial court abused its discretion when it based

Charles’s child support obligation on the $26.00 per hour wage he earned prior to his

incarceration. The issue of voluntary unemployment aside, there are facts in the record

to support the trial court’s award, and we must affirm the judgment if there is any legal

theory in the record to support it. See In re M.M., 980 S.W.2d at 700. The trial court had

broad discretion to set aside the advisory guidelines in the Texas Family Code to

determine Charles’s child support obligation, and we conclude that the more generous

award was in C.J.’s best interests. We overrule Charles’s sole issue.

                                           III. CONCLUSION

        We affirm.




                                                        __________________________
                                                        DORI CONTRERAS GARZA
                                                        Justice

Dissenting Memorandum Opinion
by Justice Linda R. Yañez.

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




980 S.W .2d 699, 700 (Tex. App.–San Antonio 1998, no pet.) (citing Reyes, 946 S.W .2d at 630).

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