                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-18-00195-CV

                                         Tomoko WARREN,
                                             Appellant

                                                  v.

                                      Eric-Jason M. WARREN,
                                               Appellee

                    From the 451st Judicial District Court, Kendall County, Texas
                                      Trial Court No. 17-302
                             Honorable Bill R. Palmer, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: May 1, 2019

AFFIRMED

           Tomoko Warren appeals a final divorce decree in which the trial court ordered Eric-Jason

M. Warren to pay Tomoko child support for five months after which neither parent would pay the

other child support. Tomoko argues the trial court abused its discretion given the large income

disparity between the parties. Tomoko also argues the evidence is insufficient to support a finding

that she is intentionally underemployed. We affirm the decree.
                                                                                                   04-18-00195-CV


                                                 BACKGROUND

        Tomoko and Eric entered into a mediated settlement agreement resolving all issues relating

to their divorce except the issue of child support which the trial court determined after a bench

trial. The trial court ordered Eric to pay Tomoko child support for five months subject to earlier

termination on the earliest occurrence of either of the following two events; (1) Tomoko failed to

timely pay the mortgage payment for the marital residence which she was awarded in the division

of property; or (2) Eric obtained a residence with at least two bedrooms. After the five months,

neither parent was ordered to pay the other child support.

        In its findings of fact, the trial court specified the following reasons for varying from the

child support guidelines. The parties agreed in the mediated settlement agreement that the parties

would have possession of the children an equal amount of time. Eric has significant health

problems which prohibit him from earning additional income. Eric also has been found to be

disabled and receives disability pay. Tomoko has two college degrees and the ability to work as a

licensed school teacher, and she did not testify as to any disability or physical handicap that would

prevent her from earning additional income. Tomoko was awarded the more reliable, newer

automobile and the marital residence while Eric must obtain new housing at his sole cost in order

to exercise his equal visitation with the children and must also secure a different automobile. 1

Finally, the trial court expressly found Tomoko was underemployed, and her possible net resources

are comparable to Eric’s if she was employed to her ability.

                             STANDARD OF REVIEW AND APPLICABLE LAW

        A court’s child support order will not be overturned on appeal unless the complaining party

can show a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per


1
 The mediated settlement agreement provided that Eric would have standard possession until he obtained a residence
with a separate bedroom for the children at which time the parties would alternate weekly possession of the children.


                                                        -2-
                                                                                      04-18-00195-CV


curiam); In re N.T.P., 402 S.W.3d 13, 18 (Tex. App.—San Antonio 2012, no pet.). “Under the

abuse of discretion standard, legal and factual sufficiency of the evidence are not independent

grounds for asserting error.” In re M.P.M., 161 S.W.3d 650, 654 (Tex. App.—San Antonio 2005,

no pet.). “However, legal and factual sufficiency are relevant factors in assessing whether the trial

court abused its discretion.” Id. “When reviewing the trial court’s decision for an abuse of

discretion, we may not substitute our judgment for that of the trial court with respect to resolution

of factual issues or matters committed to the trial court’s discretion.” In re N.T.P., 402 S.W.3d at

22. “A trial court does not abuse its discretion when its decision is based on conflicting evidence

or if some evidence of a probative and substantive character exists to support the child-support

order.” Villalpando v. Villalpando, 480 S.W.3d 801, 811 (Tex. App.—Houston [14th Dist.] 2015,

no pet.).

        “The law has long recognized parents have a legal duty to support their children during

their minority.” Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011). “A parent who is qualified to obtain

gainful employment cannot evade his or her child support obligation by voluntarily remaining

unemployed or underemployed.” Id. For these reasons, a court may apply support guidelines

based on a party’s earning potential (rather than the party’s actual income) if the court finds the

party’s actual income “is significantly less than what the [party] could earn because of intentional

unemployment or underemployment.”           TEX. FAM. CODE ANN. § 154.066.            “Intentionally

unemployed or underemployed” means the party “consciously chooses to remain unemployed or

underemployed.” Iliff, 339 S.W.3d at 80. “The court must engage in a case-by-case determination

to decide whether child support should be set based on earning potential as opposed to actual

earnings.” Id. at 82.




                                                -3-
                                                                                      04-18-00195-CV


       In this case, after Tomoko offered proof of her current wages, Eric bore the burden of

demonstrating she is intentionally unemployed or underemployed. See id. The burden then shifted

to Tomoko to offer evidence in rebuttal. See id.

                                            DISCUSSION

       As previously noted, Tomoko contends the trial court abused its discretion in not ordering

Eric to pay child support given the parties’ income disparity and argues the evidence is insufficient

to support the trial court’s finding that she is intentionally underemployed.

       During the bench trial, Tomoko testified that she was then employed at a daycare making

$12.00 an hour and worked thirty to forty hours a week. The evidence also established, however,

that she had an associate’s degree in English from a college in Japan and a bachelor’s degree in

early childhood education from the University of Texas at San Antonio. Although Tomoko

previously held a teaching license, she had not applied to renew the license which had expired.

Tomoko testified she did not work after the children were born. At the time of trial, the children

were thirteen and seven. When asked if there was a reason she had not applied to renew her

teaching license, Tomoko responded, “No.” When asked if anything was preventing her from

renewing her teaching license, Tomoko responded she did not believe being the lead teacher in a

classroom was her “path goal.” When asked if she could apply for a teaching license and obtain a

lead teacher position if she needed the funds, Tomoko responded, “Yes.”

       Having reviewed the record, we hold the evidence supports the trial court’s finding that

Tomoko was intentionally underemployed. Therefore, the trial court did not abuse its discretion

in considering Tomoko’s earning potential and finding her possible net resources were comparable

to Eric’s whose monthly income was $5,376.00 including approximately $1,000 he received each

month in VA disability benefits. And, given that the parties earning potential was comparable, the

parties had equal possession of the children, and Tomoko was awarded the marital residence and


                                                -4-
                                                                                    04-18-00195-CV


the more reliable, newer automobile, the trial court did not abuse its discretion in ordering that

neither parent was required to pay the other parent child support. See In re A.E.R., No. 05-15-

00019-CV, 2016 WL 4205683, at *6 (Tex. App.—Dallas Aug. 9, 2016, pet. denied) (noting

“evidence showed that Father was not ordered to pay child support because the parties were given

joint, 50/50 possession of the children” despite Father having “much greater earning potential than

Mother”) (mem. op.).

                                          CONCLUSION

       The trial court’s final divorce decree is affirmed.

                                                  Rebeca C. Martinez, Justice




                                                -5-
