Modification of Child Support: IN THE INTEREST OF J.D.D., B.J.D., AND W.G.D., MINOR CHILDREN

A party may not enlarge a ground of error or an argument to include a claim not raised before the trial court. In re E.A.C., 162 S.W.3d 438, 445 (Tex. App.-Dallas 2005, no pet.); In re Lendman, 170 S.W.3d 894, 898 (Tex. App.-Texarkana 2005, no pet.) (“It is improper to present a new issue on appeal or to expand on the issue that was presented to the trial court.”).

In the case of J.D.D. et. al., the father, an Optician by profession, quit his business by choice. In November 2004, Father had closed his optical dispensing business and was unemployed. In November 2005, Father had abandoned his job with Vision City and was unemployed. Father closed his optical business in October 2004 and was unemployed until May 2005 when he began working at Vision City. He testified he lost his job at Vision City in July 2005 due to illness, he was currently unemployed, and his bankruptcy and criminal conviction made it impossible for him to pass a background check and obtain employment. However, according to Vision City's records, Father abandoned his job on July 28, 2005, shortly after the trial court entered a judgment ordering Father to pay over $45,000 in child support arrearages on a set schedule and immediately after Father was convicted of criminal nonsupport. There was no evidence Vision City would have terminated Father's employment due to the criminal conviction. Further, despite his claims of illness, Father completed a job application with a different potential employer on July 28, 2005, the same day Vision City noted he had abandoned his job.

Reasoning that there had been no material and substantial change to the father's status or ability to pay child support, the Texas high court stated that a Father's duty to pay support is not limited to his ability to pay from current earnings, but also extends to his ability to pay from any and all sources that might be available. Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 160 (amended 2007) (current version at Tex. Fam. Code Ann. § 154.062 (Vernon Supp. 2007)); Garner, 200 S.W.3d at 306, 308.

Standard of Review for Child Support Modification

Material and Substantial Change

In Texas, a trial court may modify a previous child support order if “the circumstances of the child or a person affected by the order have materially and substantially changed” since the date of the order's rendition. Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 19, 2005 Tex. Gen. Laws 3148, 3154 (amended 2007) (current version at Tex. Fam. Code Ann. § 156.401(a)(1) (Vernon Supp. 2007)). As the movant, Father had the burden to show the requisite material and substantial change in circumstances since the entry of the previous order. Cameron v. Cameron, 158 S.W.3d 680, 682 (Tex. App.-Dallas 2005, pet. denied).