AFFIRMED; Opinion Filed August 26, 2013.




                                            In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-11-00066-CV

                     IN THE INTEREST OF A.B.P., A MINOR CHILD
                      On Appeal from the 380th Judicial District Court
                                   Collin County, Texas
                           Trial Court Cause No. 380-52013-05

                               MEMORANDUM OPINION
                            Before Justices Francis, Lang, and Evans
                                    Opinion by Justice Lang

       Jimmie Prindle, Jr. appeals the trial judge’s order reducing the amount of his child

support obligation. Not satisfied with the amount by which his child support obligation was

decreased, Prindle argues the trial court abused its discretion by concluding he was intentionally

underemployed and awarding an arbitrary amount of prospective child support that he alleges is

unsupported by the evidence or child support guidelines. Also, he contends the trial court erred

by failing to rule on his request for a retroactive child support decrease. For the reasons stated

below, we affirm. Because all dispositive issues are clearly settled in law, we issue this

memorandum opinion and affirm. See Tex. R. App. P. 47.4.

                     I. FACTUAL & PROCEDURAL BACKGROUND

       On March 20, 2008, Jimmie Prindle, Jr. (“Father”) filed a Petition to Modify Parent-

Child Relationship, seeking to decrease his child support obligation. The petition “request[ed]

that any decrease be made retroactive to the earlier of the time of service of citation on [Biborka
Zsofia Prindle (“Mother”)] or the appearance of [Mother] in this modification action.” After a

trial on Father’s petition, the trial court signed the Order in Suit to Modify, which reduced

Father’s child support obligation from $1,380 to $850 per month beginning August 1, 2010, and

each month thereafter. On October 25, 2010, Father filed a Request for Findings of Fact and

Conclusions of Law. When the trial court did not respond, on December 6, 2010, he filed a

Notice of Past-Due Findings of Fact and Conclusions of Law. Then, Father filed a motion for

new trial on November 17, 2010, and his notice of appeal on January 14, 2011.

            On appeal, Father complains the reduction was insufficient and not supported by the

evidence. He argues the trial court should have further reduced his obligation, using his actual

net resources “in conformity with the presumptive child support guidelines.” Also, he contends

the trial court abused its discretion by failing to rule on his request for a retroactive child support

decrease. Mother responds the evidence supports an implied finding that Father was intentionally

underemployed and the amount of child support awarded by the trial court.

            Pursuant to the Texas Supreme Court’s holding in Iliff v. Iliff, this Court abated this case

and ordered the trial court judge to make a finding of whether or not Father was intentionally

unemployed or underemployed and any other findings and recommendations the trial court

deemed appropriate. See Iliff v. Iliff, 339 S.W.3d 74, 82 (Tex. 2011).1 The trial court rendered

Findings of Fact and Conclusions of Law dated May 29, 2013, concluding, inter alia, Father was

intentionally underemployed. Then, this Court permitted supplemental briefing from both parties

only as to the merits of the issues raised by Father in his opening brief. Only Father filed a

supplemental brief.




1
    Because the relevant considerations of this area of family law were developed with specificity in Iliff, we quote extensively from that opinion.



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                                     II. CHILD SUPPORT

                                     A. Standard of Review

        “A trial court has discretion to set child support within the parameters provided by the

Texas Family Code.” Iliff, 339 S.W.3d at 78 (citing Rodriguez v. Rodriguez, 860 S.W.2d 414,

415 (Tex. 1993); see also TEX. FAM. CODE ANN. §§ 154.121–.123). “A court’s order of child

support will not be disturbed on appeal unless the complaining party can show a clear abuse of

discretion.” Id. (quoting Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam))

(citing Rodriguez, 860 S.W.2d at 415). “A trial court abuses its discretion when it acts arbitrarily

or unreasonably, without reference to guiding rules or principles.” Id. (citing Worford, 801

S.W.2d at 109; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985)).

“A trial court also abuses its discretion by failing to analyze or apply the law correctly.” Id.

(citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)).

                                       B. Applicable Law

        The Texas Family Code provides that “[i]f the actual income of the obligor is

significantly less than what the obligor could earn because of intentional unemployment or

underemployment, the [trial] court may apply the support guidelines to the earning potential of

the obligor.” TEX. FAM. CODE ANN. § 154.066 (West 2008). “While the permissive word ‘may’

imports the exercise of discretion, ‘the court is not vested with unlimited discretion, and is

required to exercise a sound and legal discretion within the limits created by the circumstances of

a particular case.’” Iliff, 339 S.W.3d at 81 (quoting Womack v. Berry, 291 S.W.2d 677, 683

(1956)). “Moreover, in child support decisions, the ‘paramount guiding principle’ of the trial

court should always be the best interest of the child.” Id. (citing Rodriguez, 860 S.W.2d at 417

n.3).




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

their minority.” Iliff, 339 S.W.3d at 81 (citing Yarborough v. Yarborough, 290 U.S. 202, 221

(1933) (“[I]n order that children may not become public charges the duty of maintenance is one

imposed primarily upon the parents, according to the needs of the child and their ability to meet

those needs.”)). “A parent who is qualified to obtain gainful employment cannot evade his or her

child support obligation by voluntarily remaining unemployed or underemployed.” Id.

“Concurrently, the court must consider ‘a parent’s right to pursue his or her own happiness’ with

a parent’s duty to support and provide for his or her child.” Id. at 81-82. (quoting In re E.A.S.,

123 S.W.3d 565, 570 (Tex. App.—El Paso 2003, pet. denied)). “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. “Once the obligor has offered proof of his or

her current wages, the obligee bears the burden of demonstrating that the obligor is intentionally

unemployed or underemployed.” Id. “The burden then shifts to the obligor, if necessary, to offer

evidence in rebuttal.” Id.

       “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.” Id. “Although

some financial resources are indispensable to raising and providing for a child, the financial

analysis will often not be the end of the court’s consideration.” Id. “A court properly considers

the obligor’s proffered rebuttal evidence of the reasons for an obligor’s intentional

unemployment or underemployment.” Id. “This includes such laudable intentions by obligors

who alter their employment situations to spend more time with their children, to live closer to

their children in order to attend their events and be more involved in their lives, or to provide

their children with better health benefits.” Id. “Other objectives are also factors, such as whether

an obligor alters his or her employment situation to start a new business, to gain further

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education, to become a public servant, or to address health needs.” Id. “An active but unfruitful

pursuit of employment may also be relevant to the court’s child support determination, as well as

economic conditions that legitimately preclude full employment.” Id.

       “But, we are mindful that such explanations are not always sincere, and the judge as fact

finder has latitude to consider the testimony and evidence to make the necessary determinations.”

Id. (citing Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981)). “Such discretion must be exercised

within the limits set by the Texas Family Code, particularly Chapter 154 including the child

support guidelines, and should always focus on the best interest of the child.” Id. “To facilitate

appellate review and to encourage consistency in the exercise of this discretion across the state,

the 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.” Id.

                                C. Application of Law to Facts

       The record shows Father worked as a “learning manager” with Capital One until he was

laid off in June 2007 “due to subprime lending failure” and “the economic situation.” He sought

and obtained employment with Value Place Property Management in April 2008 where he

earned $3,159.77 per month in net income. However, he voluntarily left Value Place on July 7,

2008, because the travel required by his employer interfered with his possession of and access to

A.B.P. In September 2008 he obtained his realtor’s license, but sold only three houses by the

time of trial in 2010 for $3,000 in commissions. He stated he intended to become a real estate

broker, after trial, by November 2010, which he expected would increase his income. According

to Father, he earned rental income in 2008 and 2009, but that the expenses of maintaining the

properties exceeded the amount of income. Additionally, Father testified he received at least

$1,069 per month in non-taxable disability benefits from the military. At the time of trial, Father

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was running for a United States Congressional seat, spent ten hours per week as a realtor, and

was working on a master’s degree in constitutional law and legislative studies. Father testified

that, other than running for congress, which he considered to be “basically a full-time job,” he

was not seeking employment at the time of trial.

       In his opening brief, Father contends the reduction of his child support obligation from

$1,380 to $850 per month was error because “the trial court abused its discretion in arbitrarily

not basing the child support reduction on [Father’s] actual net resources as indicated on his tax

returns in conformity with the presumptive child support guidelines.” Mother responds in her

opening brief that, under the Texas Family Code, “a trial court may apply the support guidelines

to the earning potential of the obligor if the actual income is significantly less than what the

obligor could earn because of intentional unemployment or underemployment.” She contends

“[t]he evidence would support a finding by the trial court that [Father] was intentionally

unemployed or underemployed.”

       After findings and conclusions were rendered by the trial court, Father filed a

supplemental brief. Father contends the trial court’s findings and conclusions as to intentional

underemployment are erroneous because he met his burden under Iliff to offer proof of his

current wages. He contends further that Mother failed to meet her burden under Iliff to

demonstrate Father was intentionally underemployed. According to Father, Mother did not offer

any “evidence that Father could have obtained better paying employment had he foregone his

congressional campaign and focused exclusively on finding employment similar to Value Place .

. . or that Father could have sold more houses had he expended more than 10 hours per week

working as a realtor.” He asserts that even if Mother demonstrated that he was intentionally

unemployed or underemployed, “Father provided sufficient rebuttal evidence indicating that the

trial court should have set Father’s support obligation based on Father’s actual income at the

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time of trial.” Specifically, he refers to his testimony “that he left the employment of Value Place

in July 2008 because it severely impacted his ability to exercise his visitation” and “that the

economic conditions occurring between mid-2007 until the time of trial [negatively] affected his

employment situation.” Also, he cites as rebuttal evidence his testimony describing his efforts to

gain employment, to earn income as a real estate agent, to obtain his real estate broker’s license,

and to campaign for a seat in the United States House of Representatives.

       The record does not support Father’s arguments that Mother did not meet her burden to

present evidence that Father was intentionally underemployed. Mother provided one of Father’s

“pay stubs” as evidence that showed Father’s gross income from Value Place was $3,958 per

month and his net income was $3,159.77. Upon cross-examination by Mother, Father admitted

that, other than running for congress, he was not seeking employment at the time of trial. Further,

Father conceded that if he were not running for congress, he would have the ability to seek and

find other employment. Additionally, Father acknowledged that he was qualified to be a

substitute teacher, which would provide another source of income, but he did not seek such

employment. On this record, we conclude Mother met her burden to demonstrate that Father was

intentionally unemployed or underemployed. See Iliff, 339 S.W.3d at 82.

       Father did offer rebuttal evidence to the contentions of intentional unemployment or

underemployment. Father explained he resigned from Value Place to spend more time with

A.B.P. Further, he described his efforts to become a public servant by running for congress.

Also, he explained the impact of the difficult economic environment on his employment and job

search. At the same time, the record shows he worked approximately ten hours per week as a real

estate agent, sold only three houses from 2008 to the time of trial in 2010, and chose to run for

congress “basically . . . full-time” rather than seeking a full-time job. We recognize reasons

offered in rebuttal should be considered by a trial court and some reasons may demonstrate

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“laudable intentions.” See Iliff, 339 S.W.3d at 82. However, the supreme court made clear in Iliff

that rebuttal “. . . explanations are not always sincere, and the judge as fact finder has latitude to

consider the testimony and evidence to make the necessary determinations.” See id.

       Based on this record, the trial court found Father’s actual income was significantly less

than what he could have been earning and that it was his conscious choice not to seek or obtain

employment that generated more income than he was currently earning. Further, the trial court

found Father had the ability to obtain employment that generated more income than he was

currently earning and that he possessed the requisite education, experience, and competence to

secure employment similar to that which he voluntarily relinquished at Value Place.

Accordingly, the trial court concluded Father was intentionally underemployed and set his child

support payments by applying the child support guidelines to his “net monthly earning potential .

. . [of] not less than $3,159.77 . . . and his monthly V.A. benefit . . . in the amount of $1,069.00.”

       On this record, we cannot say the trial court abused its discretion in finding Father was

intentionally underemployed. Further, we conclude the trial court did not abuse its discretion by

applying the child support guidelines to his net monthly earning potential and his monthly

disability benefits. See Iliff, 339 S.W.3d at 78 (citing TEX. FAM. CODE ANN. § 154.066). We

decide against Father on his first issue.

                    III. RETROACTIVE CHILD SUPPORT DECREASE

       As for Father’s complaint that the trial court failed to rule on his request for a retroactive

child support decrease, the trial court’s Memorandum states “[a]ll other requests not granted

herein are denied.” The record also shows the Order in Suit to Modify Parent-Child Relationship

denies “all relief requested in this case and not expressly granted.” There is nothing in the record

to indicate the trial court did not intend the judgment to finally dispose of the entire case.

Accordingly, we conclude the trial court did not abuse its discretion by failing to rule on Father’s

                                                 –8–
request for a retroactive child support decrease because it did rule. Moritz v. Preiss, 121 S.W.3d

715, 718–19 (Tex. 2003)) (reaffirming the finality presumption for judgments rendered after a

full trial on the merits); Lehmann v. Har–Con Corp., 39 S.W.3d 191, 201 (Tex. 2001) (“After a

full trial on the merits, the statement in a judgment that all relief not requested is denied signifies

finality; there is no expectation that the court tried only part of the case, absent an order for

severance or separate trials.”)). We decide against Father on his second issue.

                                        IV. CONCLUSION

       The trial court’s judgment is affirmed.




                                                       /Douglas S. Lang/
                                                       DOUGLAS S. LANG
                                                       JUSTICE

110066F.P05




                                                 –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE INTEREST OF A.B.P., A MINOR                   On Appeal from the 380th Judicial District
CHILD                                                Court, Collin County, Texas
                                                     Trial Court Cause No. 380-52013-05.
No. 05-11-00066-CV                                   Opinion delivered by Justice Lang. Justices
                                                     Francis and Evans participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee BIBORKA Z. PRINDLE recover her costs of this appeal
from appellant JIMMIE PRINDLE, JR.


Judgment entered this 26th day of August, 2013.




                                                   /Douglas S. Lang/
                                                   DOUGLAS S. LANG
                                                   JUSTICE




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