ROMERO v. ZAPIEN
Court of Appeals of Texas, Thirteenth Distrct, Corpus Christi, Edinburg
June 25, 2010
[PART 1 of 3]
In a recent decision, the Texas Court of Appeals, Thrirteenth District, has reaffirmed many principals of family law as it pertains to child possession and access and child suppport. In its recent ruling in ROMERO v. ZAPIEN, No. 13-07-00758-CV available at http://tinyurl.com/29nwqlr, the appeals court addressed the issues of child support, possession and access, and make up possession and access time when a parent has been wrongfully denied court-ordered access.
In this case, the father had been living two blocks from his child and earning $90,000 per year. Child support was based on that salary. Father then took a better paying job in Florida (making nearly $140,000 per year) and continued to make child support payments. However, at some point, father quit his job in Florida and moved back to Texas. As soon as he quit his job, he stopped making any child support payments at all. Mother sued for child support enforcement and father petitioned the court to lower his support obligation based on his being unemployed.
(Father, who at the time had not hired an attorney, claimed he stopped making child support payments based on his misunderstanding of the law. The court reaffirmed the rule that people who represent themselves in court must be held to the standards as attorneys.)
The appeals court reminds us that when the court sets child support and then has to enforce the child support order, the court can take into account not only the employment income of the person paying support but also any other source of income as well as whether assets are available to help make child support payments. The court also reminded the parties that the trial court has wide discretion in deviating from child support guidelines if sticking to the guidelines would mean that some of the child's needs would not be met.
In this case, the child was "thriving" in private school and the court suggested that the parents keep the child in private school but required father to pay above guideline support to make that possible. The appeals court noted that the childs needs are not limited to "the bare necessities of life."
The appeals court affirmed the arrearage, meaning that father will have to fully make up all the payments he missed or face contempt of court, i.e. jail time. The appeals court also set child support above the amount that would be payable by a minimum wage worker (the default assumption when a parent is unemployed) reasoning that father is capable of earning more than minimum wage and the needs of the child require greater financial support.