i          i      i                                                                  i       i      i




                                              OPINION

                                          No. 04-09-00362-CV

                                     IN THE INTEREST OF B.R.

                      From the 224th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CI-09727
                             Honorable Antonia Arteaga, Judge Presiding

Opinion by: Karen Angelini, Justice
Dissenting opinion by: Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 26, 2010

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

           Luis Vega appeals the judgment ordering him to pay $67,943.78 for retroactive child support,

$850.00 for past medical expenses, and $840.00 a month for current child support. Luis contends

the trial court abused its discretion in ordering retroactive child support back to the time of B.R.’s

birth, ordering payment of past medical expenses, calculating current child support based on his

potential future income, and prohibiting him from filing an action to reduce the amount of child

support set by the court. We affirm in part and reverse and remand in part.
                                                                                        04-09-00362-CV



                                            BACKGROUND

       B.R. was born on May 17, 1994, to Amber Klausner and Luis Vega. At the time of B.R.’s

birth, Amber and Luis were both in the United States Military. Amber and Luis never married, and

no court order delineated Luis’s rights and duties as B.R.’s father. Luis visited B.R. sporadically over

the years and provided minimal child support. Luis did not pay any of B.R.’s medical expenses or

provide her with health insurance. However, Luis claimed B.R. as a dependent, which resulted in

an increase in his military compensation.

       When B.R. was born, Luis was an enlisted soldier in the army. In 1997, when his military

contract ended, Luis moved to reserve status. Luis testified he returned home to Puerto Rico, where

he worked as a pharmacy technician, attended school, and completed his undergraduate studies and

law school.

       In 2007, Amber filed suit seeking termination of Luis’s parental rights so that B.R.’s

stepfather could adopt her. Luis, however, did not want his rights terminated and sought an

adjudication of parentage and a determination of his rights and duties as B.R.’s father. In response,

Amber requested retroactive child support in the event Luis’s parental rights were not terminated.

At trial, Amber testified regarding B.R.’s relationship with her stepfather and her minimal contact

with Luis. The record reflects that since B.R.’s birth, Luis has paid $26,450.00 and that based on his

income and the Texas child support guidelines, he should have paid $85,434.82. Amber and Luis

reached an agreement on all issues regarding parental rights, but could not agree on retroactive and

current child support.

       Granting Amber’s request for retroactive child support, the trial court determined that Amber

was entitled to a lump sum of $67,943.78 for child support arrears going back to B.R.’s birth and


                                                  -2-
                                                                                         04-09-00362-CV



$850 in past medical expenses. The trial court also ordered Luis to pay $840.00 in current monthly

child support. Luis now appeals.

                                       STANDARD OF REVIEW

        We review a trial court’s order for child support, including an award for retroactive support,

for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re Guthrie, 45

S.W.3d 719, 727 (Tex. App.—Dallas 2001, pet. denied). A trial court abuses its discretion if it acts

without reference to any guiding principles or rules. Worford, 801 S.W.2d at 109; In re Guthrie, 45

S.W.3d at 727. In determining whether the trial court abused its discretion, we do not substitute our

judgment for that of the trial court’s and will not disturb the trial court’s decision unless it is shown

to be arbitrary and unreasonable. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig.

proceeding).

        The trial court does not abuse its discretion if there is some evidence of a substantive and

probative character to support the decision. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex.

App.—Dallas 2005, pet. denied). “In family law cases, the abuse of discretion standard of review

overlaps with the traditional sufficiency standard of review; as a result, legal insufficiency is not an

independent ground of reversible error, but instead constitutes a factor relevant to our assessment

of whether the trial judge abused her discretion.” Vardilos v. Vardilos, 219 S.W.3d 920, 921 (Tex.

App.—Dallas 2007, no pet.).

        In a non-jury trial, where no findings of fact or conclusions of law are filed or requested, all

findings necessary to support the trial court’s judgment are implied. Holt Atherton Indus., Inc. v.

Heine, 835 S.W.2d 80, 83 (Tex. 1992); Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).




                                                   -3-
                                                                                         04-09-00362-CV



A trial court’s implied findings of fact in a bench trial have the same force and dignity as a jury’s

verdict upon jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).

                                            DISCUSSION

A.     Retroactive Child Support

       Luis contends the trial court abused its discretion in requiring him to pay retroactive child

support in the amount of $67,943.78. Section 160.636 of the Texas Family Code provides that, upon

a finding of parentage in a paternity action, a trial court may order retroactive child support as

provided by chapter 154 of the Family Code. TEX . FAM . CODE ANN . § 160.636(g) (Vernon Supp.

2009). Chapter 154, in turn, provides the trial court with guidelines in ordering retroactive child

support:

       (a)     The child support guidelines are intended to guide the court in
               determining the amount of retroactive child support, if any, to be
               ordered.


       (b)     In ordering retroactive child support, the court shall consider the net
               resources of the obligor during the relevant time period and whether:


               (1)     the mother of the child had made any previous
                       attempts to notify the obligor of his paternity or
                       probable paternity;
               (2)     the obligor had knowledge of his paternity or probable
                       paternity;
               (3)     the order of retroactive child support will impose an
                       undue financial hardship on the obligor or the
                       obligor’s family; and
               (4)     the obligor has provided actual support or other
                       necessaries before the filing of the action.




                                                 -4-
                                                                                             04-09-00362-CV



        (c)     It is presumed that a court order limiting the amount of retroactive
                child support to an amount that does not exceed the total amount of
                support that would have been due for the four years preceding the
                date the petition seeking support was filed is reasonable and in the
                best interest of the child.


        (d)     The presumption created under this section may be rebutted by
                evidence that the obligor:
                (1)     knew or should have known that the obligor was the
                        father of the child for whom support is sought; and
                (2)     sought to avoid the establishment of a support
                        obligation to the child.


        (e)     An order under this section limiting the amount of retroactive support
                does not constitute a variance from the guidelines requiring the court
                to make specific findings under Section 154.130.


        (f)     Notwithstanding any other provision of this subtitle, the court retains
                jurisdiction to render an order for retroactive child support in a suit
                if a petition requesting retroactive child support is filed not later than
                the fourth anniversary of the date of the child’s 18th birthday.


Id. § 154.131 (Vernon 2008). Section 154.131 does not bind the trial court to these listed factors in

determining retroactive child support, but is merely intended to guide the trial court in determining

the amount of retroactive child support. Garza v. Blanton, 55 S.W.3d 708, 710 (Tex. App.—Corpus

Christi 2001, no pet.). The statutory language vests the trial court with discretion to award retroactive

support and the amount of that support. In re Guthrie, 45 S.W.3d at 727.

        Luis first argues that the trial court abused its discretion in ordering retroactive child support

covering a thirteen-year period because Amber did not present evidence rebutting subsection

154.131(c)’s presumption that an award of four years of retroactive child support is reasonable and

in the best interest of B.R. See TEX . FAM . CODE ANN . § 154.131(c) (Vernon 2008). However, Luis’s


                                                   -5-
                                                                                                            04-09-00362-CV



reliance on the statutory presumption provided by subsection 154.131(c) is misplaced. Section

154.131(c)’s presumption applies when the trial court’s order limits the amount of retroactive child

support to an amount not exceeding the total amount of support that would have been due for the

four years preceding the date the petition seeking child support was filed. See TEX . FAM . CODE ANN .

§ 154.131(c) (Vernon 2008). Nowhere does subsection 154.131(c) prohibit a trial court from

awarding an amount greater than four years of retroactive child support. That is, if a trial court limits

the retroactive child support to the four year amount, the parent seeking more than that amount must

rebut the presumption provided by subsection 154.131(c) by proving that the obligor knew or should

have known he was the father of the child and that the obligor sought to avoid the establishment of

a support obligation to the child. See TEX . FAM . CODE ANN . § 154.131(d) (Vernon 2008). Here,

however, the trial court’s order did not limit the retroactive child support to an amount representing

four years of child support; therefore, subsection 154.131(c)’s presumption was not triggered and

does not apply to this case.1




         1
           … In interpreting a statute, our goal is to ascertain and give effect to the Legislature’s intent in enacting it. In
re Canales, 52 S.W .3d 698, 702 (Tex. 2001) (orig. proceeding). W e note that the dissent relies on legislative history to
support its interpretation of the Legislature’s intent in enacting section 154.131. However, while the Code Construction
Act does allow a court to consider legislative history, among other matters, see T EX . G O V ’T C O D E A N N . § 311.023
(Vernon 2005), the Texas Supreme Court has warned against courts relying on legislative history instead of the plain
language of a statute. In Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W .3d 644, 651 (Tex. 2006), the
supreme court stated that “[o]rdinarily, the truest manifestation of what legislators intended is what lawmakers enacted,
the literal text they voted on.” (emphasis added). “This enacted language is what constitutes the law, and when a statute’s
words are unambiguous and yield a single inescapable interpretation, the judge’s inquiry is at an end.” Id. at 651-52.
Thus, “wherever possible,” courts should “construe statutes as written”; only “where enacted language is nebulous” may
courts “cautiously consult legislative history to help divine legislative intent.” Id. at 652. The supreme court explained
that it used the word “cautiously” because while it recognized that “the Code Construction Act expressly authorizes
courts to use a range of construction aids, including legislative history,” it was “mindful that over-reliance on secondary
materials should be avoided, particularly where a statute’s language is clear.” Id. at 652 n.4. According to the court, “[i]f
the text is unambiguous, we must take the Legislature at its word and not rummage around in legislative minutiae.” Id.
Because the text of section 154.131 is unambiguous, we rely on the plain words of the statute rather than legislative
history.

                                                             -6-
                                                                                        04-09-00362-CV



        Next, relying on subsection 154.131(b), Luis argues that the amount of the retroactive child

support ordered by the trial court is unreasonable and places an undue burden on his family.

However, Luis did not offer any evidence of his financial responsibilities and does not demonstrate

how he is unduly burdened by the award. Therefore, we look to the evidence and the general

guidelines for setting child support in order to determine whether the trial court abused its discretion

in awarding retroactive support.

        It is undisputed that Luis knew of B.R.’s existence her entire life and received credit for B.R.

as a dependent on his military compensation. The evidence indicates that Luis was employed since

B.R.’s birth and received military bonuses. Based on Luis’s financial information, his child support

contribution under the state attorney general standards for the past fifteen years should have been

$85,434.82, but he paid only $26,450.00. Luis contributed very little toward B.R.’s care and support

in comparison to the amount of income he received. We conclude there is evidence to support the

trial court’s award of retroactive child support and, therefore, the trial court did not abuse its

discretion.

B.      Current Child Support

        Luis next contends the trial court abused its discretion in calculating current child support

on the assumption he could earn $80,000.00 a year. The trial court acknowledged that Luis was not

employed, but found that based on Luis’s salary history and earning capacity he could earn at least

$80,000.00 a year.

        Section 154.066 of the Family Code provides that a trial court may order a parent to pay more

child support than what the child support guidelines would require if the parent could potentially


                                                  -7-
                                                                                      04-09-00362-CV



earn more money, but has intentionally chosen not to do so. See TEX . FAM . CODE ANN . § 154.066

(Vernon 2008). In order for a court to find a parent is intentionally underemployed or unemployed

under section 154.066, there must be evidence the parent reduced his income for the purpose of

decreasing his child support payments. See Dubois v. Dubois, 956 S.W.2d 607, 610 (Tex.

App.—Tyler 1997, no pet.). There is no presumption that when a parent is no longer as lucratively

employed as he was in previous years, he reduced his income to avoid child support payments. See

Gaxiola v. Garcia, 169 S.W.3d 426, 432 (Tex. App.—El Paso 2005, no pet.). The requisite intent

may be inferred from such circumstances as the parent’s education, economic adversities and

business reversals, business background, and earning potential. In re Davis, 30 S.W.3d 609, 617

(Tex. App.—Texarkana 2000, no pet.). “If the actual income of the obligor is 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 ANN . §

154.066 (Vernon 2008); see Tenery v. Tenery, 955 S.W.2d 337, 340 (Tex. App.—San Antonio 1997,

no writ). Once the obligor has offered proof of his current wages, the obligee bears the burden of

demonstrating the obligor is intentionally underemployed. Zorilla v. Wahid, 83 S.W.3d 247, 253

(Tex. App.—Corpus Christi 2002, no pet.); Dubois, 956 S.W.2d at 610.

       Luis offered proof that his income was derived from his rental property and military reserve

pay. However, the trial court presumed Luis had the earning potential of $80,000.00 a year and

ordered him to pay $840.00 per month in child support. The trial court took into consideration Luis’s

income for the two years during which he was activated from reserve status and deployed to Iraq,

once in 2003 and the second in 2006. Amber contends Luis was intentionally underemployed, comes

to the court with unclean hands, and has made significant income during his child’s life. However,

                                                 -8-
                                                                                        04-09-00362-CV



the issue is whether Luis was underemployed for the purpose of decreasing child support at the time

of the trial. See In re K.N.C., 276 S.W.3d 624, 627 (Tex. App.—Dallas 2008, no pet.). The record

indicates Luis was an enlisted soldier with a signed military contract that could have been renewed

in 1997, but Luis chose to take reserve status and move home to continue his education. Since that

time, Luis obtained his undergraduate and law degrees. At the time of trial, Luis was planning to take

the bar examination and had an interview in Washington D.C. for a position as a legislative aid. Luis

does not dispute that he voluntarily left a lucrative position with the military, but explains he did so

to pursue the law degree that he now holds.

       Luis’s decision to leave the military in 1997 to continue his education does not give rise to

an inference of voluntary underemployment to avoid paying child support. See In re J.G.L., 295

S.W.3d 424, 428 (Tex. App.—Dallas 2009, no pet.). There was no court ordered child support in

1997, and there is no evidence Amber was asking Luis for support. Luis accomplished what he set

out to do in 1997 — he obtained an undergraduate and a law degree. We conclude there was no

evidence presented to the trial court to support a finding of voluntary underemployment or

unemployment at the time of the trial. Therefore, the trial court abused its discretion in basing child

support on the presumption of Luis’s earning potential of $80,000.00 a year. See id. We reverse the

judgment in part and remand the cause so that the trial court can determine current child support

pursuant to the applicable Family Code provisions.

       Luis also claims the trial court erred in requiring him to pay half of B.R.’s counseling fees,

which he claims were incurred solely for the purpose of terminating his parental rights. Amber

testified the counseling was not sought specifically for preparing for the adoption but because B.R.

was going through a tumultuous time. The trial court properly exercised its discretion in requiring

                                                  -9-
                                                                                         04-09-00362-CV



Luis pay one-half of B.R.’s counseling fees. See TEX . FAM . CODE ANN . §§ 154.008, 154.064

(Vernon 2008).

C.      Modification of Child Support

        Finally, Luis contends the trial court erred in ordering that he could not file an action seeking

to reduce the current child support amount. However, nothing in the judgment restricts Luis from

seeking relief in the trial court as allowed by the applicable law. Thus, Luis’s third issue presents

nothing for review.

                                            CONCLUSION

        The trial court abused its discretion in calculating current child support on the assumption

Luis had the earning potential of $80,000.00 a year. Therefore, we reverse the trial court’s judgment

setting current child support at $840.00 a month, and remand the cause to the trial court for a new

trial on that issue. In all other respects, we affirm the trial court’s judgment.



                                                         Karen Angelini, Justice




                                                  -10-
