One of the cool parts of being a family law attorney with the Law Office of Bryan Fagan is that there is never a dull moment. There are always unique people with unique circumstances who walk through our door with questions about their lives and families.
Like Texas, many other states lay out a specific percentage of a non-custodial parent's income to pay in child support to the custodial parent. Texas has it that for one child, a non-custodial parent should pay 20% of their net monthly resources towards the help of that child. For two children, 25% would go towards child support. The percentages increase by increments of 5% until you reach five or more kids topping out at 40%. In this way, courts have a straightforward mechanism to be put into action for determining child support in most cases. It has become so predictable that the guideline levels of support will be implemented that most attorneys and clients don't bat an eye when the issue of paying guideline support is raised.
Recently, a potential client presented a scenario where he and his wife were divorced in a state other than Texas, and after the divorce, the man's ex-wife and children had moved to Texas. The state that the children and ex-wife had previously lived in was a higher than average cost of living state, and our potential client was ordered to pay child support that is above and beyond the "guideline" levels of support for that state.
Our potential client was thus left with a child support order that obligated him to pay an amount of child support above and beyond what is proscribed in the family code of his native state. When a judge decides regarding any subject related to a child, they must do so based on what is in the best interests of that child. This is a standard that almost every state utilizes when applying the law towards a child's specific circumstances and family.
Based on the needs of that child, their current circumstances, the ability of their parents to provide the necessities of life, and any medical/social/educational needs of that child, an amount of child support will be ordered. Whether the parties to the divorce agreed in mediation to that level of child support or a judge ordered that the amount be paid after a trial, the fact is that the current child support order obligates him to pay an above guidelines level of support.
Where does the Law Office of Bryan Fagan come into play?
Here is where our office becomes relevant to the discussion. This gentleman contacted us about representing him in a child support modification case. His thoughts on the matter center around the reduced level of expenses that his ex-wife is responsible for now that his children live in the Great State of Texas. Having moved from another state whose cost of living is much higher than Texas, our potential client wanted to see what a judge would consider reducing the above guidelines level of child support. Is there a basis in prior court cases to argue that an out-of-state child support order can be modified to see a reduction in the child support obligation based on circumstances like this?
Today's blog post from the Law Office of Bryan Fagan will seek to answer that question. As I see it, there are two parts to this discussion that we have to tackle. The first is whether or not a Texas Court has the jurisdiction to modify an out-of-state child support order. The second is what basis in the law would a family court judge have to reduce the above guidelines level of child support when there has been a change in the cost of living associated with raising children.
When does a Texas court gain the jurisdiction to modify an out-of-state child support order?
There are a couple of ways that a child support order from a court outside of Texas could be modified, potentially, by a Texas family court. The Texas Family Code states in section 159.613 that if both the child support obligor (the parent who pays child support) and the obligee (the parent who receives child support payments) and the child all reside in Texas, then our state has attained jurisdiction over the case and may modify and enforce the out of state order.
Likewise, when only one party (parent) lives in Texas, a modification is possible even if both parents do not reside in Texas. This occurs when the parent bringing the modification cases (in our above scenario, the father) is not a resident of Texas. The responding party (the Mother in our example) lives in Texas and is subject to personal jurisdiction in Texas. Here, too, a Texas family court would have jurisdiction over the case.
What have Texas courts stated about subject matter like this?
So now we at least have a basic understanding of how a Texas court gains the ability to make rulings regarding an order issued by an out-of-state court. The jurisdiction to do so is critically important. You may be in a situation like our potential client- having seen a change in circumstances that have materially affected your family since issuing that order. Thus, some portion of your prior order is no longer suitable for you or your children. However, suppose you cannot successfully argue to a Texas court that jurisdiction is proper in Texas. In that case, you will not be able to make an argument about any of the facts and circumstances that justify a modification.
A reasonably recent Texas state appellate court decision would further assist us in our discussion. In re Dennis J. Martinez, 450 S.W.3d 157 (2014) contains a good chat of the relevant law regarding how and when an out-of-state court can lose jurisdiction over a case and its parties.
This court notes that in section 159.205 of the Texas Family Code, our state law provides only two ways a court may lose jurisdiction over a case and its parties about a family law matter. First, the obligor, the oblige, and the child would have to move out of the state that issued the order (as we discussed previously). Another less likely scenario would be that all individuals file written consents in Texas, allowing a Texas court to assume jurisdiction and modify the other state's order.
As noted above, the circumstances under which a court may modify a support decree from another state are found in section 159.611 of the Family Code. SeaTac. F.A.M.CODE ANN. § 159.611. The non-rendering state permits a modification under the circumstances outlined in section 159.611 because, under such cases, the rendering state no longer has a sufficient interest in modifying its order.
Suppose you are facing a situation like a gentleman who contacted us about potentially representing him in a child support modification case here in Texas. In that case, you need to consider whether or not a Texas court will even be able to hear your arguments and potentially grant you whatever relief you are requesting. Keep in mind that if you cannot clear this jurisdictional hurdle, you won't even get the opportunity to submit any of your arguments to the court as to why your child support order needs to be modified.
Can a Texas court grant a reduction in the child support obligation of a parent under an out-of-state order?
Here is the question that our potential client is interested in knowing the answer to. He wanted to find out what facts and circumstances would need to be in play that could lead to a court in Texas reducing his above guidelines level of child support that he is currently obligated to pay.
A child support order modification is warranted when the petitioning party (the person asking for the conversion) can provide evidence showing a material and substantial change in the circumstances of one of the parties to the order or a child of the order. As the court in Tucker v. Tucker, 908 S.W.2d 530 (1995) notes, there is an inherent fact-finding nature of child support issues and the cases made up of those issues.
The high court in Texas was stating what every family law attorney worth his salt could tell you: that family law cases are highly fact-specific. If you would like to modify a child support order, you will need to present facts clearly and concisely to the court. This means that your initial petition to the court and your oral arguments inside a modification hearing need to display the requisite level of material and substantial change required to grant the modification.
Cost in living expenses has been a factor alleged by prior parties seeking child support modifications.
Part of the analysis that your court will look at when considering whether or not to grant a child support modification is the expenses incurred by the custodial parent raising the children on a day-to-day basis. Remember- our potential client would like to make an argument that because his ex-wife and kids now live in Texas, with its lower cost of living than their native state, he is no longer in need of a child support payment that is above the guidelines of his home state.
Costs associated with special education for your child, school tuition, and things of this nature are relevant to our discussion. A court would look to the expenses of your ex-spouse to determine whether there is sufficient evidence in the record to compare the costs of her and your children at the time that the original child support order was issued and what the expenses are now. This means that you will need to dig to produce this kind of evidence, especially if the child support order is from a decade ago.
In the case, In the Interest of C.C.J. and C.M.J, Minor Children, 244 S.W.3d 911 (2008), the court went over a good analysis when that has to be shown to a court to justify a modification:
To determine whether there has been a material and substantial change in circumstances, the trial court must examine and compare the events of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought. London v. London, 192 S.W.3d at 15.
In that case, the parent who was attempting to modify the prior court order was the Mother. She was arguing for an increase in the level of child support based on a material and substantial change in the circumstances of her and her children. Her expenses, she attempted to argue, had increased dramatically in recent years, while the income of her ex-husband had increased. The evidence she presented, the court determined, was insufficient to justify an increase in child support. Here is what the appellate court determined:
Here, without both historical and current evidence of the financial circumstances of the Mother and the children, the trial court had nothing to compare. See id. Because there is no evidence in the record of the financial circumstances of Mother or the children at the time of the entry of the divorce decree, we conclude the trial court's finding of "a substantial and material change of circumstances since the rendition of the prior order" is not supported by the record. Accordingly, we conclude the trial court abused its discretion in increasing Father's monthly child support obligation.
What does the Texas Family Code have to say about a decrease in the needs of a child about child support?
The Texas Family Code states that an increase in the needs, the standard of living, or lifestyle of the oblige since the rendition of the existing order does not warrant an increase in the obligor's child support obligation. Texas Family Code section 156.405. I would also argue that a Texas court could potentially hold the opposite. Specifically, an argument that a decrease in the needs, the standard of living, or lifestyle of the custodial parent is not necessarily a reason in and of itself to modify a child support obligation.
A Texas case that is important for our purposes is In the Interest of J.A.H. and M.K.H., Children, 311 S.W.3d 536 (2009). Here, as in the prior case we discussed, a mother was attempting to argue that an increase in her expenses due to a change in the cost of living after a move justified an increase in the child support obligation. What the court found, in this case, was that all of the evidence submitted by the Mother tended to show that there had been a change in her circumstances rather than a change in a substantial change in the cases of her children.
The court argued that simply showing a lifestyle change and not a material or substantial change in circumstances of the children does not in and of itself justify a modification of the child support order. If you attempt to argue that because your ex-spouse's mortgage payment has decreased or their utility bills are lower, that justifies a decrease in the child support obligation, then this case should pause.
How are the needs of your child taken into account by a court?
Specifically, to justify an award of child support above the guidelines outlined in the Texas Family Code, your ex-spouse must show that your child's needs would be unmet but for the higher than guidelines level of support. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993). Note that the needs of your child are not the bare necessities of life, either. Each court will decide as to what the needs of your child are. Like we mentioned earlier in this blog post, the facts of your case will guide the judge in large part.
The bottom line: if you wish to modify a child support order, come with plenty of evidence
Whether yours is an out-of-state child support order or an order that originates in Texas, you need to come to court with plenty of evidence that justifies the modification request. A family court judge has the authority to reduce a level of child support that is currently set above the guidelines of your home state, but to earn that decrease in the support obligation; you have to submit sufficient proof showing a change in the conditions of your spouse, your children or you. A material and substantial change regarding the cost of living is a trickier argument to make than one based on a change in your income or an increase (or decrease) in the educational or medical needs of your child.
Please consider contacting the Law Office of Bryan Fagan if you have questions about today's material. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions in a comfortable and pressure-free environment.