Beth M. Johnson
Child Support: Guidelines, Net Resources, and Proven Needs
The purpose of a child-support suit is to obtain an order requiring one or both parents to pay for a child’s financial, medical, and dental support. See Tex. Fam. Code §§ 154.001(a); 154.003, 154.008. To determine the amount of income available for child support, the court must calculate the respondent's net resources. Net resources are calculated by (1) determining the annual sum of all resources defined as “net resources,” (2) subtracting from that amount certain items, such as taxes paid, and (3) dividing the result by 12 to determine monthly net resources. See Tex. Fam. Code § 154.062. To the extent possible, the court must rely on evidence of a party’s resources when applying the child-support guidelines. Tex. Fam. Code § 154.0655(b).
To calculate net resources, the court must determine the sum of all resources available to the obligor on an annual basis. See Tex. Fam. Code § 154.061(a). Generally, the court must base its calculations on some substantive and probative evidence of net resources, but it is not always clear how resources should be calculated on an annual basis. See Reagins v. Walker, 524 S.W.3d 757, 761 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Many courts average current and former resources to determine what the obligor’s net resources would be for a year, particularly when the evidence of income is imprecise or incomplete. See e.g., Ayala v. Ayala, 387 S.W.3d 721, 727 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
The court must weigh the evidence before it. See e.g., In re D.L.N., 609 S.W.3d 237 (Tex. App.—Texarkana 2020, no pet.); In re H.L.H., No. 12-20-00247-CV (Tex. App.—City 2021, no pet.) (mem. op.) (not available on Westlaw). In D.L.N., a father appealed a modification of child support, arguing the trial court ordered him to pay more than guideline support after calculating his net resources incorrectly. 609 S.W.3d at 243. However, during discovery, the father was subpoenaed to supply pay stubs, but he failed to do so. Id. The only pay stubs that were included in the appellate record showed that the trial court’s order was for less than the statutory amount based on that evidence. Id.
In H.L.H., a self-employed father who had gross annual sales of over a $1 million claimed that he had a negative income, and he produced a tax return to support that claim. No. 12-20-00247-CV, at *2. However, given evidence of the father’s lavish lifestyle, the court of appeals upheld the trial court’s finding that the father’s net resources exceeded $8000 a month. Id. at *5.
All wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses) are included in net resources. Tex. Fam. Code § 154.062(b)(1). However, one court found that health insurance premiums paid by an obligor’s employer should not be included in a calculation of net resources. Daves v. McKnight, No. 14-20-00101-CV, 2021 WL 3672787, at *2–*3 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (mem. op.).
The maximum net monthly resources to which the statutory guidelines can be applied is currently $9,200. See Tex. Fam. Code § 154.125(a), (a-1); 44 Tex. Reg. 3559, 3559 (2019). If the obligor’s monthly net resources exceed $9,200, the amount of child support is calculated as a percentage of the first $9,200 and then adjusted based on whether the child’s proven needs exceed that presumptive amount of support. Tex. Fam. Code §§ 154.125, 154.126. If the child’s proven needs exceed the presumptive amount of support, the responsibility for meeting the child’s additional needs is allocated between the parties based on their circumstances. Tex. Fam. Code § 154.126(b).
When providing evidence of proven needs, the needs of the children must be separated from the needs of the parent. In re K.F., No. 02-21-00056-CV, 2021 WL 6816119, at *5. (Tex. App.—Fort Worth 2021, no pet.) (mem. op.) Additionally, monthly expense and proven needs are not the same thing. Id.
To determine the amount of a child support obligation, the court must apply the child-support guidelines to the obligor’s monthly net resources. See Tex. Fam. Code §§ 154.121, 154.125, 154.126. A court may deviate from the guidelines if doing so is in the child’s best interest, but there must be evidence to support that deviation. In re C.S., No. 04-20-00421-CV, 2021 WL 5496159, at *5. (Tex. App.—San Antonio 2021, no pet.) (mem. op.). In C.S., the trial court ordered the father to pay for half of all the children’s extracurricular activities. Id. During trial, the mother presented evidence of the children’s extracurricular activities, but there was no evidence that the activities were “needs.” Id. at *6. Further, there was no limitation placed on mother in the order as to the extent of the extracurricular activities in which she could have chosen to involve the children, putting no upper limit on the father’s obligation. Id.
With sufficient evidence, extracurricular activities could support an order for above guideline support. Klages v. Klages, No. 03-20-00086-CV, 2021 WL 2604064 (Tex. App.—Austin 2021, no pet.) (mem. op.). In Klages, the trial court ordered the father to pay 29.8% of his net monthly resources in support for for one child. Id. at *1. The evidence showed that the mother had been exclusively paying for the child’s golf lessons, tournaments, and related expenses, which ranged from $200 to $800 a month. Id. at *3. Further, the father had no visitation with the child, which increased the mother’s need for support. Id. at *4.
Regardless of whether the trial court deviates from the guidelines, a modification of child support can only date back to the earlier of (1) the date of service of citation; or (2) an appearance in the suit to modify. Tex. Fam. Code § 156.401; In re Howley, No. 03-21-00318-CV, 2021 WL 5750190, at *1 (Tex. App.—2021, orig. proceeding) (mem. op.). In Howley, the mother testified that her rent was about three quarters of her income. Id. She relied on Father’s child support and spousal maintenance and was working on getting a college education at age 49 after spending 17 years as a stay-at-home mom. Id. Additionally, the children’s activities had been severely restricted due to lack of funds. Id. at *2. The court held that there was sufficient evidence to support above-guideline child support; however, the trial court erred in retroactively modifying support to before the commencement of the suit. Id. at *3–*4. Because the trial court granted a lump sum payment, the entire order was vacated, and the issue remanded. Id. at *4.