Modification of Child Support | Voluntary Underemployment

Finding of intentional underemployment affirmed on appeal. Retroactive reduction of monthly child support denied.

McLane v. McLane No. 01-06-00634 (Tex. App.- Houston [1st Dist.] May 1, 2008) (Opinion on motion for rehearing by Hanks) (motion to decrease child support, intentional underemployment, retroactive modification)
Opinion by Justice George C. Hanks, Jr.
Panel members: Justices Taft, Hanks and Higley
Michael McLane v. Sandra Helene McLane
Appeal from 309th Family District Court of Harris County
Trial Court Judge: Hon. Frank B. Rynd
Disposition: Affirm trial court's judgment reducing monthly child support to a lesser degree than sought; denying retroactive application of change

OPINION ON REHEARING

Michael McLane filed a motion for en banc rehearing. We withdraw our opinion and judgment of December 20, 2007 and issue the following in their stead. We dismiss the motion for en banc rehearing as moot.

Michael McLane appeals the trial court’s decision modifying his child support payments. In two issues, Michael complains of the trial court’s finding that he was intentionally underemployed and its refusal to retroactively award a decrease of child support. We affirm.

Background

In July 2003, after 10 years of marriage, Michael and Sandra McLane divorced. As agreed upon, Sandra was awarded primary custody of SMM, their adopted son who was born on September 11, 1996. Michael, who is a licensed attorney, agreed to pay $800 each month in child support. Less than four months later, Michael filed a variety of motions that, among other things, sought a reduction in his child support payments.

Two years later, there was a one-day bench trial on Michael’s claims for a reduction in child support, and, on December 10, 2005, the associate judge issued the following report:

Modification granted. [Child support] reduced to $628.55/mo [beginning] December 15, 2005. [Michael] is underemployed. [Michael’s] request for retroactive reduction is denied. [Michael] has an earning capacity of at least $48,000/yr as a wage earner.

Michael appealed the intentional-underemployment ruling to the referring court, and, on May 5, 2006, the presiding judge affirmed the associate judge’s report. The trial court filed the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

The court finds that Michael McLane is intentionally underemployed and has an earning capacity of at least $48,000.00 a year. The application of the guidelines to gross resources of $48,000.00 a year provides a child support award of $628.55 per month.

Michael McLane graduated from South Texas College of Law in 1995, was licensed to practice law in Texas in 1996, is licensed to practice in the US District Court, Southern District of Texas, has practiced law over nine years and has been licensed, has received training or has worked as a realtor, insurance salesman, financial planner and social worker.

CONCLUSION OF LAW

Guideline support is presumed to be reasonable and in the best interest of the child.

A court may apply the support guidelines to the earning potential of the obligor.
The trial court filed additional findings as follows:

FINDINGS REQUIRED BY SECTION 154.130 OF TEXAS FAMILY CODE

The application of the guidelines to the earning potential of the obligor is not unjust or inappropriate.

The monthly net resources of the obligor’s earning potential per month are $3,142.75.

The monthly net resources of the obligee per month are minimal.

The percentage applied to the obligor’s potential net resources for child support by the actual order rendered by the court is 20%.

The amount of child support if the percentage guidelines are applied to the obligor’s net resources is $628.55.

Michael appeals the trial court’s decision.

Intentional Underemployment

Michael argues that the trial court erred in finding that he was intentionally underemployed because (1) there was no evidence of acts to avoid the responsibility to pay child support, (2) his income after the divorce has not decreased, and (3) there were no findings of fact or conclusions of law made by the trial court that support the conclusion that he is intentionally underemployed. We disagree.

Standard of Review

The trial court is accorded broad discretion in setting and modifying child support payments and, absent a clear abuse of discretion, the trial court’s order will not be disturbed on appeal. Tex. Fam. Code Ann. § 156.402(b) (Vernon 1996); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); McGuire v. McGuire, 4 S.W.3d 382, 387 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The trial court’s primary consideration in determining the merits of a request for the modification of child support payments is the best interest of the child. Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002).

A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Under the abuse of discretion standard, we review the evidence in the light most favorable to the order and indulge every presumption in favor of the trial court’s order. See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). If some probative and substantive evidence supports the order, there is no abuse of discretion. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

The Law

Chapter 154 of the Texas Family Code establishes a multiple-step process for determining the amount of child support. The trial court must first determine the parties’ gross income, net income, and monthly net resources. And, each party is required to furnish information sufficient to identify the party’s net resources and ability to pay support, such as production of copies of income tax returns, financial statements, and pay stubs. After determining the amount of net resources, the trial court must decide whether to apply the child support guidelines or whether application of the guidelines would be unjust or inappropriate. See Tex. Fam. Code Ann. §§ 154.001–.309 (Vernon 2002 & Supp. 2007). Importantly, a parent’s child support obligation is not limited to that parent’s ability to pay from current earnings; rather it extends to his or her financial ability to pay from any and all available sources. See In the Interest of Striegler, 915 S.W.2d 629, 638 (Tex. App.—Amarillo 1996, writ denied).

Further, a trial court may order a parent to pay child support beyond the amount the parent’s income would ordinarily indicate under the guidelines if the parent could potentially earn more money but has intentionally chosen not to. See Tex. Fam. Code Ann. § 154.066 (Vernon 2002) (intentional underemployment or unemployment). If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor. Tex. Fam. Code Ann. § 154.066. “A parent who is qualified to obtain gainful employment cannot evade his support obligation by voluntarily remaining unemployed or underemployed.” Tenery v. Tenery, 955 S.W.2d 337, 340 (Tex. App.—San Antonio 1997, no pet.).

In order to find a parent intentionally underemployed, the evidence must show that the parent reduced his income for the purpose of decreasing his child support payments. In re P.J.H., 25 S.W.3d 402, 405–06 (Tex. App.—Fort Worth 2000, no pet.). The requisite intent may be inferred from such circumstances as the parent’s education, economic adversities, business reversals, business background, and earning potential. In re Davis, 30 S.W.3d 609, 617 (Tex. App.—Texarkana 2000, no pet.); In re P.J.H., 25 S.W.3d at 406. At the same time, the court must keep in mind a parent’s right to pursue his or her own happiness. Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex. App.—Corpus Christi 2002, no pet.); DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex. App.—Tyler 1997, no pet.). Once the obligor has offered proof of his current wages, the obligee bears the burden of demonstrating that the obligor is intentionally underemployed. Zorilla, 83 S.W.3d at 253; DuBois, 956 S.W.2d at 610. Intentional underemployment has been construed to mean a “voluntary choice by the obligor.” In re D.S., 76 S.W.3d 512, 520 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Baucom v. Crews, 819 S.W.2d 628, 633 (Tex. App.—Waco 1991, no writ.) (affirming modification where trial court found that obligor voluntarily became underemployed).

Analysis

Both Michael and Sandra testified at the original hearing before the associate judge and during the appeal to the trial court. They each represented themselves pro se, and the trial court had access to the record of the first proceeding. Although the trial court granted Michael’s motion and reduced his child support to $628.55 per month, Michael had sought a greater reduction, from the $800/month support he had originally agreed to down to $303.77/month. He argued that, based on his actual income, the guidelines provide that his monthly support should have been $297.83 for 2003, $342.33 for 2004, and $271.15 for 2005, which yield an average of $303.77.

Michael testified that, at the time of the divorce in 2003, he had agreed to the $800 per month payments based on his “historical payment of excess income” to his wife for the previous 10 years. Despite that agreement, however, Michael testified that, in reality, he was nearly bankrupt and was in the process of preparing a bankruptcy petition at that time. He testified that a friend had convinced him not to go through with filing the petition. Michael also testified that, although he initially moved to modify the payments in 2003, more than two years before the original proceeding on his motion, he did not have adequate funds to analyze his finances and go forward with the motion until 2005. Michael testified that he did not know the exact amount of his income at the time of his divorce proceedings and only recently became aware of his actual financial status, after he hired an accountant to review his records.

Michael presented the court with a document entitled “Trend Analysis of Self-Employment Income,” which he represents states his annual net income from 1995 to 2005. Michael testified that this typewritten document, which contains one entry in handwriting, reflects that his net income was trending upward from a $4,907 loss in 2002 (at the time he began paying $750 to $800 per month in child support) to an estimated $19,921.87 of positive earnings in 2004, not downward after his divorce.

Michael testified that the net income amounts in the analysis are supported by his federal income tax and social security statements.

However, Michael only offered into evidence his tax statements for the years 2002, 2003, and 2004, the time period shortly before and after the divorce. These statements are dated December 4, 2005, the day before the original hearing, and Michael testified that he had completed them just the night before.

Although he reports as personal income amounts less than what was found by the trial court, these statements also reflect that, as the sole proprietor of his law firm, Michael reported a gross income between $50,000 and $60,000 per year. Michael did not provide any verifiable supporting documentation regarding the business expenses and deductions he claims reduced his yearly net resources to an amount below the amount found by the trial court.

At the appeal to the trial court that was held over two months later, there was no testimony from Michael that the income tax statements for 2002, 2003, and 2004, which also state that he owes more than $12,000 and $14,000 in back taxes and penalties, had been filed with the Internal Revenue Service (“IRS”) as of the time of trial or about what arrangements, if any, he had made with the IRS for the payment of those taxes and penalties.

Michael testified that he has been self-employed for more than nine years, and he has chosen to “remain self-employed rather than be controlled by someone else’s morals.” He has been unable to grow his business because he (1) has had to spend a lot of time defending “false claims of child abuse,” (2) has had to forgo cases in remote counties due to the cost of gas, and (3) prefers to be available to attend SMM’s school events. He testified that he has gotten only two jobs in the last few years—one as a “game representative helping people” at Astroworld on the weekends, but that job ended when Astroworld closed in September 2005, and the other with a law firm, where he was making $25/hour. One month after he started with the law firm, “in the chaos following Hurricane Rita he was terminated against his will and he continued working for himself since then.” Michael testified that he did not have the income necessary to pay the existing child support and paying his support obligations has required him to forgo paying some of his creditors, and he could no longer tithe to his church. He had even applied for food stamps. Although Michael testified that he has chosen to remain self-employed for personal reasons, he also testified that he has applied for 14 legal jobs since the time of divorce and had only obtained the one job with a law firm paying $25 per hour.

Michael presented evidence from his clients, Tanya Stafford and Linda Kelly in an attempt to establish that Sandra was hindering his efforts to develop his practice. Stafford and Kelly both testified that they had received angry telephone calls from Sandra. During the telephone call, Stafford identified herself as one of Michael’s clients, and Sandra explained that she was calling numbers from a telephone bill that had been sent to her. Sandra did not call back. Kelly, however, testified that she had known Michael for years and had socialized with Michael and Sandra when they were a couple. She said that she had received a call from Sandra during which Sandra “bad mouthed” Michael and remarked that he was an incompetent lawyer. Sandra testified that she did not know that Kelly was Michael’s client. Kelly acknowledged, at trial, that she did not tell Sandra that she was Michael’s client. Sandra explained that she was calling Kelly as a friend to let her know not to send a joint Christmas card to the McLanes, and, after this conversation, Sandra did not call her again.

Ralph Rieger, Michael’s accountant, testified that he reviewed financial documents that Michael had provided to him and that he prepared the trend analysis based on those documents. He testified that, based on this analysis, Michael’s current income was “right in line” with his average income.

Sandra testified that it would not be in SMM’s best interest for her to hurt Michael’s practice. She noted that, in November 2002 prior to the divorce becoming final, Michael agreed to pay $750/month in child support, and then in June 2003, he agreed to pay $800/month.

In this case, despite Michael’s argument to the contrary, there was probative evidence to support the trial court’s conclusion that he was intentionally underemployed. First, there was undisputed evidence that Michael’s education and expertise enable him to obtain more lucrative employment if he wanted to do so. The evidence supports the court’s factual findings in its order that Michael graduated from South Texas College of Law in 1995, was licensed to practice law in Texas in 1996, is licensed to practice in the US District Court, Southern District of Texas, has practiced law over nine years and has been licensed, has received training or has worked as a realtor, insurance salesman, financial planner and social worker.

The court also heard evidence that Michael’s practice areas include family law, bankruptcy, and criminal defense, and that the year Michael graduated from law school, more than 10 years ago, he received an income of approximately $44,000 a year.

There is also evidence from Sandra that supports the conclusion that Michael became underemployed after his divorce with the intent of reducing his child support obligations. Contradicting his testimony, Sandra testified that Michael has taken lower paying jobs to reduce the amount of child support payments because he considers these payments as additional personal income to Sandra that he does not want to pay. At trial, Sandra testified as follows:
Your Honor, I believe that Mr. McLane is purposefully underemployed and that he chooses to be so because he does not want to give me money to help me financially take care of our son. He does not see this as child support. He sees it as personal income to me. As a matter of fact, he said that to me last Monday, on November 18th. His exact words to me were, “What I am giving you is second income to you.” But, Your Honor, it is not income to me. That would be alimony. This is child support to help support our son.

Given the caustic nature of the McLanes’ divorce proceedings and the trial court’s firsthand knowledge of the history of this case, we cannot conclude that it was unreasonable for the trial court to credit Sandra’s testimony as true. The record reflects that, during and after the divorce proceedings, Michael has blamed Sandra for coaching SMM to continually make out-cry allegations of abuse against him to Children’s Protective Services (“CPS”). Michael believes that Sandra has been trying to ruin his legal reputation with his clients. The record also reflects that the McLanes are so bitter toward one another that, as recently as October of 2007, they were still unwilling to put aside their differences even when confronted with the obvious fact that they were harming SMM.

An example of the acrimonious nature of this relationship is revealed in the transcript from the October 26, 2007 hearing conducted by the trial court to give the CPS investigator an opportunity to update the court on the status of SMM’s mental and physical health. During the hearing, the trial court made the following observations about Michael’s and Sandra’s continuing animosity toward each other:

Well, the Court has told [Michael and Sandra] on numerous occasions. If I could undo an adoption, that adoption would be undone so quickly. I’ve actually done research to see what authority I have to undo an adoption. Unfortunately, I have none. I think it’s tragic that this child was adopted.
. . .
Then I’m going to remind you once again the tragedy of this child and what you-all are doing. I begged you, begged you to try to do the right thing for this child, to put your own selfish needs, you know, put them aside and try real hard to work for this child. I’ve actually—I beg you again and again, I think it’s a tragedy that you-all adopted this child, tragic for his life, but I can’t undo that. And you have, I think, a legal obligation, a moral obligation, you’re going to have to answer to a Judge far more significant than me at the end of your life on how you treated this child entrusted in your care. And that Judge has far more powers than I have.

At the hearing, a caseworker from CPS, Emerald Ealy, testified that, in the past year, CPS has conducted between 15 - 20 investigations relating to SMM. She testified that she has seen no evidence of physical abuse, but SMM says that his father is abusing him, and she does not believe that SMM is making false allegations. Ealy testified that SMM is emotionally traumatized with so much “back and forth” between his parents, and she recommended that he be removed from their homes until the conflict between the parents is resolved. At the conclusion of the hearing, the trial court, sua sponte, awarded CPS temporary managing conservatorship of SMM.

Nevertheless, Michael argues that it was an abuse of discretion for the trial court not to believe his testimony and evidence regarding his financial status, specifically his evidence that his income has not decreased since the divorce and regarding his motive for taking lesser paying jobs. He argues that the court erred in making its decision regarding his underemployment and failing to take into consideration his right to pursue happiness in his career and spend more time with his child. We disagree.

In this case, almost all of the evidence of Michael’s finances before and after the divorce and his intent regarding the decision not to seek higher paying jobs is based on the credibility of (1) Michael’s testimony or (2) documents he has created for purposes of this litigation. Where, as here, the trial court’s decision regarding the appropriate amount of child support is based, in part, on the credibility of the witnesses, a matter within the trial court’s purview, we will not disturb that decision on appeal. See Whitworth, 222 S.W.3d at 623. The trial court is the sole decider of the candor, demeanor and credibility of the witnesses in this case and it was free to believe or disbelieve Michael’s testimony. See Tucker v. Tucker, 908 S.W.2d 530, 534 (Tex. App.—San Antonio 1995, writ denied). Contrary to Michael’s assertions, the trial court was not required to accept the evidence he presented of his income and net resources as true, especially if it was unsupported by objective evidence that he did not create himself. Friermood v. Friermood, 25 S.W.3d 758,760 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Glassman & Glassman v. Somoza, 694 S.W.2d 174, 176 (Tex. App.—Houston [14th Dist.] 1985, no writ) (trial court, as fact finder, may decline to accept as true the testimony of an interested witness even if uncontradicted). Furthermore, the trial court could have inferred Michael’s intent to be underemployed from his education, business background, and earning potential. See In re Davis, 30 S.W.3d at 617; In re P.J.H., 25 S.W.3d at 406.

Because the trial court had knowledge of the case from the time of the divorce until the modification hearing, it was in a better position than this Court to consider the evidence of Michael’s credibility regarding his motives and the documents he has presented to the court. See McGuire v. McGuire, 4 S.W.3d 382, 387 (Tex. App.—Houston [1st Dist.] 1999, no pet.); Shoemate v. Winkley, 505 S.W.2d 357, 358–59 (Tex. Civ. App.—El Paso 1974, no writ). Thus, given the record in this case, we hold that the trial court did not abuse its discretion in finding that Michael was intentionally underemployed and that his potential yearly income was $48,000. We hold that the record before us does not disclose a clear abuse of discretion, and we overrule this issue.
Retroactive Award

Finally, Michael asserts that the trial court erred in denying his request that the decrease in child support apply retroactively. We disagree.

Standard of Review

While section 156.401 empowers the trial court to modify support orders retroactively, the application of the provision is not mandatory, but, rather, is left to the broad discretion of the trial court. Nordstrom v. Nordstrom, 965 S.W.2d 575, 582 (Tex. App.—Houston [1st Dist.] 1997, writ denied). It is imperative that the trial court have broad discretion to decide whether all of the facts and circumstances necessitate and justify a retroactive award of support. Id. Accordingly, we apply here the same abuse of discretion standard that we previously applied to the court’s finding of intentional underemployment. See id.

As noted above, the trial court had before it one day of testimony from numerous witnesses and several exhibits detailing the circumstances of the parties. A review of the record reveals that the court was presented with evidence that would support its decision to not apply the order retroactively. The record reflects that, despite his explanations as to the reason, the fact still remains that Michael originally agreed to child support payments in the amount of $800 per month, and he did not pursue the motion to modify the support order until more than two years after the motion had been filed. Furthermore, the trial court heard evidence that this reduction might cause hardship to SMM. Sandra testified that she is the primary caretaker of SMM, has negligible net resources, and cannot afford to repay several years of child support that Michael allegedly overpaid. To justify such an award, the evidence must directly support a retroactive modification. Id. Here, we hold that it does not, and therefore, the trial court did not abuse its discretion in denying the modification request. We overrule this issue.

Conclusion

We affirm the trial court’s modification order.

George C. Hanks, Jr.
Justice

Panel consists of Justices Taft, Hanks, and Higley.

Order Requiring OAG to Return Money Seized from Dad's Bank Account for Child Support Reversed on Appeal

Nonresident's Fight to Invalidate Default Judgment for Lack of Personal Jurisdiction Leaves Him In No-Win Situation

Office of the Attorney General of Texas v. Joe V. Phillips Tex.App.- Houston [1st Dist.] May 31, 2007)(Hanks)(order voiding child support arrearage reversed)

First Court of Appeals, in an opinion by Justice George Hanks, holds that California resident consented to personal jurisdiction when he challenged child support enforcement efforts based on Texas divorce and paternity determination on the ground that the Court did not have personal jurisdiction over him. California resident averred that he had no notice of the Texas proceeding, in which default judgment had been rendered against him, and that personal jurisdiction over him was lacking.

Attorney General appealed from Houston Family Court Judge Doug Warne's order that California resident owed zero $ in child support arrearages because underlying judgment was void. Holding that the judgment was merely voidable, not void, and that California resident waived his objection to personal jurisdiction by appearing in Texas court to fight the Attorney General [which acts as child support enforcement agency in Texas], the court of appeals reverses the trial court's order requiring the Office of Attorney General to return money seized from the man's bank account.

Dispostion: Trial court judgment reversed, and remanded to trial court for further proceedings
Panel members: Justices Sam Nuchia, George C. Hanks, Jr., and Jane Bland
Appellate cause no:
Full style: The Office of the Attorney General of Texas v. Joe V. Phillips
Trial Court: 311th District Court
Trial Court Judge: Hon. Doug Warne
Appellant's attorney: John B. Worley, Texas Attorney General Greg Abbott
Appellee's attorney: Scott Ramsey

Legal lingo: Child support enforcement, arrearage, bank account levy, personal jurisdiction, in personam jurisdiction, long-arm jurisdiction statute, pleading jurisdictional facts, special appearance, void judgments, voidable judgments, nonpaternity, child of the marriage, marital presumption of paternity, parentage, collateral attack

Beistel v. Allen

Beistel v. Allen (Tex.App.-Houston [1st Dist.] May 31, 2007)(Bland)

REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Before Chief Justice Radack, Justices Jennings and Bland

Elizabeth Beistel v. Robert Theodore Allen, Jr.
Appeal from 246th District Court of Harris County

Opinion issued May 31, 2007

MEMORANDUM OPINION BY JUSTICE BLAND

Appellant Elizabeth Beistel appeals the trial court’s termination of two wage-withholding orders against appellee Theodore Allen. In four issues, Beistel contends (1) the trial court lacked subject matter jurisdiction to terminate the wage-withholding orders, (2) Beistel was an indispensable party to the termination hearing, (3) the trial court abused its discretion in terminating the wage-withholding orders because the evidence is legally and factually insufficient to support the trial court’s findings that Allen overpaid his child support obligation and that no child support was due and owing, and (4) the trial court terminated the wage-withholding orders based on an incorrect legal theory. We conclude that (1) the trial court had jurisdiction to terminate the wage-withholding orders, (2) Beistel made a general appearance at the termination hearing, and (3) the trial court abused its discretion in terminating the wage-withholding orders. We therefore reverse.
Background

In May 1986, Beistel and Allen obtained a divorce in Ohio. The Ohio court ordered Allen to pay forty-five dollars a week in child support for each of the couple’s two children. Allen moved to Texas shortly after the divorce.
In 1988, 1994, and 2000, Beistel obtained judgments in Texas against Allen under the Uniform Reciprocal Enforcement of Support Act and the Uniform Interstate Family Support Act (UIFSA). The judgments state the amount Allen owes in child support arrearages, and order Allen to make payments toward the arrearages. To enforce the judgments, the trial court issued a judicial writ of withholding in 1994, and the Texas Attorney General issued an administrative writ of withholding in 2001. Both require Allen’s employer to withhold his current child support payments and a portion of the arrearages from his paychecks.
In 2005, Allen petitioned the trial court to terminate the wage-withholding orders. The Texas Attorney General intervened. The trial court held a hearing at which Allen, the Attorney General, and counsel for Beistel were present. At the time of the hearing, both of Beistel and Allen’s children were over the age of eighteen. Beistel filed a special appearance, which the trial court granted. Beistel’s counsel limited her participation at the hearing in an attempt to avoid making a general appearance. At the end of the hearing, the trial court terminated the wage-withholding orders and entered findings of fact and conclusions of law.
Subject Matter Jurisdiction
In her first issue, Beistel contends the trial court lacked subject matter jurisdiction to terminate the wage-withholding orders.

A. Invoking Jurisdiction

Beistel first contends that the trial court lacked jurisdiction to terminate the wage-withholding orders because Allen failed to file a pleading to invoke the trial court’s jurisdiction. Allen responds that he filed a petition to terminate the wage-withholding orders on June 17, 2005.
Texas Family Code section 102.002 provides that “[a]n original suit begins by the filing of a petition as provided by this chapter.” Tex. Fam. Code Ann. § 102.002 (Vernon 2002); In re A.M., 936 S.W.2d 59, 63 (Tex. App.—San Antonio 1996, no writ) (“A suit affecting the parent-child relationship commences by the filing of a petition.”). Issues concerning wage-withholding orders may be determined in a suit filed pursuant to section 102.002. See Tex. Fam. Code Ann. §§ 102.001(b), 102.002, 158.001 (Vernon 2002).
The record contains Allen’s petition to terminate the wage-withholding orders, and a time stamp at the top of the petition denotes that it was filed on June 17, 2005. The petition addresses both wage-withholding orders and their respective cause numbers, and requests that the trial court terminate them both. We therefore hold that Allen’s petition was sufficient to invoke the trial court’s jurisdiction to adjudicate a dispute over the wage-withholding orders.

B. Jurisdiction to Modify or Reduce Arrearages

Beistel next contends that the trial court lacked jurisdiction to modify or reduce the amount of child support arrearages owed by Allen.
Child support orders issued in another state and registered in Texas are enforceable in the same manner and are subject to the same procedures as child support orders issued by Texas courts. Id. § 159.603(b) (Vernon 2002). Texas courts, however, are not permitted to modify child support orders issued by other states except under particular circumstances specified in Family Code section 159.611. Id. § 159.603(c), § 159.611 (Vernon Supp. 2006).
Here, the rules applicable to the trial court’s ability to modify an out-of-state child support order do not apply. See id. § 159.611. The trial court in this case did not modify the Ohio child support order; it simply terminated the two wage-withholding orders issued in Texas. The trial court in this case issued the judicial writ of withholding in 1994, and the Texas Attorney General issued the administrative writ of withholding in 2001. See id. §§ 102.001(b), 102.002, 158.001. We therefore hold that the trial court had jurisdiction to modify or terminate the wage-withholding orders. See id.; see also id. § 158.404 (Vernon 2002) (“If a court has rendered an order that reduces the amount of child support to be withheld or terminates withholding for child support, any person or governmental entity may deliver to the employer a certified copy of the order without the requirement that the clerk of the court deliver the order.”).

Indispensable Party

In her second issue, Beistel contends that the trial court erred in terminating the wage-withholding orders after granting her special appearance because she was an indispensable party to the termination hearing. Allen responds that Beistel is estopped from asserting that she was an indispensable party to the termination hearing because she made a general appearance at the hearing through counsel.
A party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court. Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004); Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998); Xenos Yuen v. Fisher, No. 01-06-00010-CV, 2007 WL 529362, at *4 (Tex. App.—Houston [1st Dist.] Feb. 22, 2007, no pet.). “Every appearance, prior to judgment, not in compliance with [the special appearance] rule is a general appearance.” Tex. R. Civ. P. 120a(1).
In this case, Beistel’s counsel attended the termination hearing and made the following statement when Allen attempted to admit a spreadsheet demonstrating that he had paid his entire child support obligation: “Your Honor, if they are offering it as a shorthand rendition of what he says got paid, I guess the Court could accept it on that basis. Otherwise, I’d object that it’s hearsay.” The trial court did not rule on the objection, but admitted the spreadsheet for the limited purpose of serving as a shorthand rendition of Allen’s testimony. Later in the hearing, the trial court was about to ask Beistel’s counsel if she wanted to cross-examine a witness when the following exchange occurred:

[Trial Court:] Okay. Ms. Quinn, I’m not sure you’re here, but maybe you are.

[Beistel’s Counsel:] I’ll be here.

[Allen’s Counsel:] I don’t think she’s here, Judge.

[Trial Court:] It may be waiving a previously granted Special Appearance.

[Allen’s Counsel:] Right.

[Trial Court:] I just see it as a legal issue. I’m not saying you are, but discretion being the better part of—

[Beistel’s Counsel:] Okay. I’ll keep my mouth shut.

[Trial Court:] If you remain moot, [sic] you won’t have a problem.

[Beistel’s Counsel:] I would agree with that, Judge.

[Trial Court:] Ms. Quinn appears as an observer. Go ahead, Ms. Martin-Simon.

Beistel’s counsel’s objection to the admission of Allen’s spreadsheet invoked the judgment of the court on a question other than the court’s jurisdiction, recognized that the action was properly pending in Texas, and sought affirmative action from the court. See Trejo, 142 S.W.3d at 304; Dawson-Austin, 968 S.W.2d at 322; see also Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 8 (Tex. App.—San Antonio 2004, pet. denied) (“A general appearance occurs when a party invokes the judgment of the court in any way on any question other than that of the court’s jurisdiction, without being compelled to do so by a previous ruling of the court. The emphasis is on affirmative action which impliedly recognizes the court’s jurisdiction over the parties.” (citations omitted)). While Texas courts have held that a party who merely observes a proceeding without participating does not make a general appearance, Beistel’s counsel participated when she objected to the admission of Allen’s spreadsheet. See, e.g., Seals v. Upper Trinity Reg’l Water Dist., 145 S.W.3d 291, 297 (Tex. App.—Fort Worth 2004, pet. dism’d); Carone, 138 S.W.3d at 8; Bradford v. Bradford, 971 S.W.2d 595, 598 (Tex. App.—Dallas 1998, no pet.); Serna v. Webster, 908 S.W.2d 487, 492 (Tex. App.—San Antonio 1995, no writ). Counsel’s participation in the hearing was inconsistent with the assertion in Beistel’s special appearance that the trial court lacked jurisdiction over her. See Dawson-Austin, 968 S.W.2d at 323 (“[T]he motion for continuance did not request affirmative relief inconsistent with Dawson-Austin’s assertion that the district court lacked jurisdiction, which, as we have noted, is the test for a general appearance.”). Additionally, counsel’s attempt to preserve the special appearance, and the trial court’s assertion that counsel was appearing as an observer, does not eliminate, or cure the effect of the objection. See Trejo, 142 S.W.3d at 304; Dawson-Austin, 968 S.W.2d at 322; Carone, 138 S.W.3d at 8. Instead, we focus on counsel’s affirmative action, which impliedly recognized the court’s jurisdiction over Beistel. See Seals, 145 S.W.3d at 296; Carone, 138 S.W.3d at 8; Bradford, 971 S.W.2d at 598. We therefore hold that the appearance and participation of Beistel’s counsel at the termination hearing constituted a general appearance. See Seals, 145 S.W.3d at 298–99 (holding that appellee made general appearance at hearing where it stated that it had no objection to appellant’s unsworn testimony, reserved right to place appellant under oath, and asked trial court to determine scope of pleadings in case); Toler v. Travis County Child Welfare Unit, 520 S.W.2d 834, 838 (Tex. Civ. App.—Austin 1975, writ ref’d n.r.e.) (holding that father made general appearance at hearing where he sought adjudication that would have permitted him and his wife to have custody of children and take them to West Virginia to live). We need not address whether Beistel was an indispensable party to the termination hearing, as Beistel’s general appearance renders this issue moot.

Legal and Factual Sufficiency

In her third issue, Beistel contends the trial court abused its discretion in terminating the wage-withholding orders because the evidence presented at the termination hearing is legally and factually insufficient to support the trial court’s findings that Allen “made overpayments of child support,” and that “no child support is due and owing.”
Generally, unless the complaining party can demonstrate a clear abuse of discretion, orders arising from a suit affecting the parent-child relationship will not be disturbed on appeal. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Sotelo v. Gonzales, 170 S.W.3d 783, 787 (Tex. App.—El Paso 2005, no pet.); In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.). In determining whether an abuse of discretion has occurred, we view the evidence in a light most favorable to the court’s decision and indulge every legal presumption in favor of its judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). When a court fails to analyze or apply the law correctly, it abuses its discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court also abuses its discretion if it acts arbitrarily and unreasonably, or without reference to any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Legal and factual sufficiency challenges are not independent grounds of error, but relevant factors in determining whether the trial court abused its discretion. See id.; Miles v. Peacock, No. 01-06-00313-CV, 2007 WL 1166162, at *3 (Tex. App.—Houston [1st Dist.] Apr. 19, 2007, no pet. h.); Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); D.S., 76 S.W.3d at 516; McGuire v. McGuire, 4 S.W.3d 382, 387 n.2 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A trial court does not abuse its discretion when there is some evidence of a substantive and probative character to support the trial court’s judgment. Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Holley, 864 S.W.2d at 706.

At the termination hearing, Allen testified that he had paid his entire child support obligation, and admitted a spreadsheet as a shorthand rendition of his testimony showing that the withholding orders had actually caused him to pay more than he owed. Allen created the spreadsheet by calculating the total amount of child support he paid, and then subtracting the total amount of child support he owed.

To calculate his total child support obligation, Allen multiplied his weekly child support payment by the number of weeks in a year. He then multiplied this product by the number of years he was obligated to pay child support for each of his two children. The resulting calculation shows that Allen owed a total of $60,840 in child support. Allen then calculated the total amount of child support he paid by adding together the receipts provided by the Texas Attorney General. Allen alleges that he paid $79,186.98 in child support. When the amount of child support Allen owed ($60,840) is subtracted from the amount of child support Allen paid ($79,186.98), the spreadsheet shows that Allen overpaid $18,346.98 in child support.

The calculations in Allen’s spreadsheet are flawed for several reasons. First, Allen’s calculation of his total child support obligation does not include any interest charges on the arrearages. Texas Family Code section 159.604(a) provides that the law of the state that issues a child support order governs “(1) the nature, extent, amount, and duration of current payments under a registered support order; (2) the computation and payment of arrearages and accrual of interest on the arrearages under the support order; and (3) the existence and satisfaction of other obligations under the support order.” Tex. Fam. Code Ann. § 159.604(a) (Vernon Supp. 2006). Ohio law requires that a certain amount of interest accrue on child support arrearages, and the evidence in this case is undisputed that Allen has been in arrears on his child support obligation since it began in 1986. See Ohio Rev. Code Ann. § 1343.03 (LexisNexis 2006), § 3123.171 (LexisNexis Supp. 2007), § 5703.47 (LexisNexis 2005). Allen’s calculation of the total amount of his child support obligation is therefore incorrect.

Second, Allen’s calculation of the total amount of child support he paid is nonsensical. In his calculation, Allen multiplies the amount of child support he allegedly paid by various percentage rates depending upon when he made the payments. Allen then adds these amounts to the total amount of child support he allegedly paid. The record contains no evidence explaining these percentages or their significance.

Lastly, the calculations in Allen’s spreadsheet ignore the fact that his entire child support arrearage was reduced to a single judgment in 2000. Allen’s youngest child turned eighteen on November 29, 2000, which, according to the Ohio divorce decree, terminated his current child support obligation. The same month, the trial court entered a judgment against Allen that consolidated all of his child support arrearages. The Attorney General admitted this judgment at the termination hearing, which shows that as of November 15, 2000, Allen owed $30,346.88 in child support arrearages. The calculations on Allen’s spreadsheet, however, are based on the total amount of child support owed, and the total amount of child support paid. Allen produced no evidence regarding the amount of the arrearage judgment or any accrued interest on the judgment that he has paid since November 15, 2000. Without this evidence, the trial court had no way to determine if Allen has completely paid his child support arrearage judgment.

Allen’s testimony that he paid his entire child support obligation is based on the spreadsheet he admitted into evidence, which as determined above, is facially incorrect and does not address the amount of the arrearage judgment Allen has paid since November 15, 2000. The evidence presented therefore does not support the trial court’s findings that Allen “made overpayments of child support,” and that “no child support is due and owing.” See Zeifman v. Michels, 212 S.W.3d 582, 596 (Tex. App.—Austin 2006, pet. denied) (holding that trial court abused its discretion because evidence was legally insufficient to support conservatorship order); Stucki v. Stucki, No. 12-04-00290-CV, 2006 WL 2106969, at *5 (Tex. App.—Tyler July 31, 2006, no pet.) (holding that trial court abused its discretion because evidence was legally insufficient to support child support order); Agraz v. Carnley, 143 S.W.3d 547, 554–55 (Tex. App.—Dallas 2004, no pet.) (holding that trial court abused its discretion because evidence was legally insufficient to support child support and conservatorship orders). We hold that without evidence to support its decision, the trial court abused its discretion in terminating the wage-withholding orders. See Buller, 806 S.W.2d at 226; Miles, 2007 WL 1166162, at *3; Dunn, 177 S.W.3d at 396; D.S., 76 S.W.3d at 516; McGuire, 4 S.W.3d at 387 n.2. We reverse the trial court’s orders terminating the judicial and administrative writs of withholding and remand for further proceedings.
We need not address Beistel’s fourth issue because we have already determined that the trial court abused its discretion in terminating the wage-withholding orders.
Conclusion
We hold that (1) the trial court had jurisdiction to terminate the wage-withholding orders, (2) Beistel made a general appearance at the termination hearing, and (3) the trial court abused its discretion in terminating the wage-withholding orders. We therefore reverse the orders of the trial court and remand for further proceedings.

Jane Bland
Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Due Process Violated in Child Support Contempt Proceeding

Habeas Corpus Granted in Child Support Contempt Case Against Disabled Lawyer - Trial Court Violated Due Process in Dismissing Inability-to-Pay Defense as Irrelevant

In Re Brownhill (Tex.App.- Houston [14th Dist.] Jun. 7, 2007)(Edelman)(child support contempt

Fourteenth Court of Appeals, in an opinion written by Justice Edelman, holds that father's due process rights were violated when family court judge Lisa Millard denied him the opportunity to present evidence that he had a stroke, no income, no access to credit, and no ability to pay a judgment in excess of $40,000. Trial court would not allow obligor to attempt to establish inability-to-pay defense, characterizing it as "irrelevant." Court of Appeals declares the commitment order void and orders relator released.

Disposition: Habeas corpus relief granted
Opinion author: Justice Richard Edelman
Panel members: Justices Brock Yates, Edelman and Seymore
Appellate cause no: 14-07-00346-CV
Style: In Re: James Steven Brownhill
Trial Court: 310th District Court of Harris County (Judge Lisa A. Millard)

Terms: Houston family law cases, child support enforcement, affirmative defense of inability to pay, contempt, habeas corpus, due process, criminal contempt, inability to comply defense