Reversed and Remanded and Opinion filed March 12, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00589-CV

               ALLEN CHRISTOPHER TRUMBULL, Appellant
                                        V.

                  SHELBY HENLEY TRUMBULL, Appellee

                    On Appeal from the 97th District Court
                           Montague County, Texas
                    Trial Court Cause No. 2011-0090M-CV

                                   OPINION

      The principal issue in this case is whether the trial court’s determination of
child support constitutes an abuse of discretion. The trial court computed the
support obligation using the obligor’s earning capability, rather than his actual
earnings. Because there is no evidence to support the implied finding of intentional
underemployment, we reverse the trial court’s order and remand for additional
proceedings.
                                  BACKGROUND

      In March of 2011, Shelby Trumbull filed for divorce from her husband
Chris. Two children had been born of the marriage. The trial court named Shelby
joint managing conservator with the exclusive right to designate the children’s
primary residence. Chris received standard visitation rights.

      Chris’s child support obligation was the main issue litigated at trial. The
evidence showed that he had held a few jobs during the course of the marriage. In
April of 2000, Chris was hired as a sales manager for Progressive Concepts, a
distributor of audio, video, and cell phone equipment. Shelby never knew the exact
amount of Chris’s salary. The couple kept separate bank accounts, and Chris
prevented Shelby from participating in household financial matters. According to
Shelby, when Chris began working at Progressive Concepts, he had boasted that he
could earn between $60,000 and $80,000 annually because his salary was based on
commission. Chris testified that the most he actually made “was maybe forty,
forty-four [thousand dollars].”

      Chris eventually left Progressive Concepts and opened his own liquor store
in October of 2008. Financing for the store was provided by Shelby’s father.
During the early stages of the business, Chris paid himself a gross salary of $3,000
per month, or $36,000 per year. The business declined with the economy,
becoming less profitable as the years progressed. On some occasions, Chris would
not pay himself at all to keep the business open. After Shelby petitioned for
divorce, her father foreclosed on the business, sending Chris into a period of
unemployment.

      Chris returned to his job at Progressive Concepts in August of 2011. At the
time of trial, he was still gainfully employed, but earning less than in his previous
position. Paystubs reflect that he is currently paid a gross salary of $2,000 per
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month, plus commission. Business is cyclical in the industry, and his commission
checks “have never been anything huge.” Chris postulated that his more senior
colleagues were earning about $30,000 annually, and he did not realistically expect
to earn more than what they made. Based on his own commission payments
through April of 2012, Chris projected an annual gross salary of $29,563.64.

      In addition to his regular employment, Shelby testified that Chris had
worked occasional weekend jobs during their marriage. He sometimes installed
electronics in cars and boats, earning between $800 and $1,000 per weekend. Chris
indicated that the market for these accessories has been “pretty much killed off.”
He also testified that he was presently assisting his friend’s production company,
though not for compensation.

      The record does not contain any tax returns. The evidence reflects that Chris
did not pay his taxes in some years, unbeknownst to Shelby. When a joint return
was filed, Shelby testified that she signed the document without reviewing the
income reported. The only documentary evidence of Chris’s former salaries
consists of two W-2 slips: one from the liquor store, dated for tax year 2008,
reporting wages of $7,388.24; and the other from Progressive Concepts, dated
2006, reporting wages of $25,228.05.

      In its findings of fact, the trial court determined that Chris is currently
capable of earning $60,000 per year. Applying the Family Code guidelines to that
earning capability, the court ordered Chris to pay $1,000 per month in child
support for his two children. In addition to this child support, the court also ordered
Chris to pay $192 per month for the children’s health insurance. Chris appeals
from this judgment.




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                                    ANALYSIS

      We review the trial court’s determination of child support for an abuse of
discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per
curiam); In re M.K.R., 216 S.W.3d 58, 61 (Tex. App.—Fort Worth 2007, no pet.).
The trial court abuses its discretion when its decision is arbitrary, unreasonable, or
without reference to guiding rules or principles. See Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Under this standard, issues
relating to the legal and factual sufficiency of the evidence are not independent
grounds of error; rather, they are relevant factors in assessing whether the trial
court abused its discretion. See In re W.M., 172 S.W.3d 718, 725 (Tex. App.—Fort
Worth 2005, no pet.). The trial court does not abuse its discretion if the record
contains some evidence of substantive and probative character to support its
decision. See In re M.N.G., 147 S.W.3d 521, 530 (Tex. App.—Fort Worth 2004,
pet. denied).

      On appeal, Chris challenges the manner in which the trial court calculated
his child support obligation. The evidence is undisputed that Chris earns a base
salary of $2,000 per month through his current employer. With commissions
included, his gross annual income is estimated at less than $30,000. The trial court
determined, however, that Chris’s support obligation should be based on an
earning potential of twice that figure. The court appears to have invoked the
authority of section 154.066 of the Texas Family Code, which states that a support
order may be based on the earning potential of the obligor, rather than his actual
income, “[i]f the actual income of the obligor is significantly less than what the
obligor could earn because of intentional unemployment or underemployment.”
See Tex. Fam. Code § 154.066. Chris argues that this section should not have been
applied because Shelby did not plead that he was intentionally underemployed, the

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trial court did not make an express finding that he was underemployed, and the
evidence does not support a finding of underemployment.

      Shelby responds that the issue of underemployment is moot because there is
sufficient evidence that Chris actually earned $60,000 per year. We disagree.
Shelby provided the only evidence of this particular income figure. During trial,
she testified that when Chris first started his job, he had “bragged” that he could
make between $60,000 and $80,000 annually because his income was based on
commission. Speculation of income potential is not evidence of actual earnings.
The evidence is undisputed that Chris never earned more than $44,000 per year
during the marriage. The evidence also conclusively established that Chris makes
less than $30,000 annually at his current position. Because there is no evidence that
Chris is actually earning $60,000 per year, the trial court’s judgment can be
supported only if the evidence supports a finding of intentional underemployment.
See Iliff v. Iliff, 339 S.W.3d 74, 82 (Tex. 2011) (“[T]he trial court must make a
finding of intentional unemployment or underemployment and its decision to base
child support on earnings potential rather than actual earnings must be supported
by the record.”).

      In Iliff, the supreme court held that once the obligor has offered proof of his
current wages, the obligee bears the burden of demonstrating that the obligor is
intentionally underemployed. Id. The trial court may consider whether the obligor
is attempting to avoid child support by remaining underemployed, but there is no
requirement that the obligee prove that the obligor has reduced his income for the
purpose of decreasing his child support payments. Id. at 80. The court may also
consider evidence in rebuttal, including evidence that economic conditions have
legitimately precluded full employment or that the obligor has altered his
employment to pursue laudable goals and aspirations. See id. at 81–82.

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      In a hearing on a motion for new trial, Shelby testified that Chris is capable
of earning $60,000 per year “[i]f he applies himself.” Shelby did not explain how
this “application” might be realized. By his own account, Chris has never earned
more than $44,000 in a given year from regular sources.

      Shelby also testified that Chris had occasionally earned supplemental
income during the marriage by installing car and boat accessories on the weekends.
This evidence does not support a finding of underemployment, however, because
Shelby did not testify that this alternative source of income was still available, and
Chris indicated that there was no longer a market for these services.

      Even if this supplemental income were available, the evidence still does not
show that Chris has an earning capability of $60,000 per year. There is no
testimony in this record establishing how much supplemental income Chris could
expect from his weekend jobs in a given year. Shelby merely testified that
supplemental income was generated in the past. But to support a finding of
intentional underemployment, it is not enough to simply establish that the obligor
is failing to maximize his potential. By statute, the obligee must show that the
actual earnings of the obligor are “significantly less” than his earnings potential.
See Tex. Fam. Code § 154.066; Iliff, 339 S.W.3d at 82 (“Trial courts should be
cautious of setting child support based on earning potential in every case where an
obligor makes less money than he or she has in the past.”). Because the record
contains no evidence regarding Chris’s past annual income from alternative
sources, the trial court had no basis for implicitly finding that, without that
additional income, he is intentionally making significantly less. See Tex. Fam.
Code § 154.061 (providing that, whenever feasible, gross income should be
computed on an annual basis and then recalculated to determine an obligor’s net
resources available for child support).

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      In the interest of judicial economy, we also address Chris’s issue regarding
health insurance premiums. After reviewing the calculations in the trial court’s
order, it appears that Chris’s child support obligation was computed without
considering the costs of the children’s health insurance. The Family Code
mandates that such costs be deducted from the obligor’s resources when
determining the net resources available for child support. See id. § 154.062(d)(5).
Therefore, we instruct the trial court on remand to deduct these costs from Chris’s
resources when it determines his child support obligation.

                                 CONCLUSION

      There is no substantive or probative evidence that Chris actually earns, or is
capable of earning, $60,000 per year. Accordingly, we conclude that the trial court
abused its discretion when it ordered Chris to pay child support based on that
income amount. The trial court’s judgment is reversed and remanded for additional
proceedings consistent with this opinion.




                                      /s/       Adele Hedges
                                                Chief Justice



Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.




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