Dissenting opinion issued June 21, 2011.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-09-00785-CV
———————————
Juan Ayala, Appellant
V.
Blanca Edit Ayala, Appellee
On Appeal from the 312th Judicial District Court
Harris County, Texas
Trial Court Case No. 2008-14153
DISSENTING OPINION
Mr. Juan Ayala’s second point of error contends that the evidence is insufficient to support the trial court’s award of $61,498 as retroactive child support.
That a parent may be ordered to pay retroactive child support is statutorily established. Tex. Fam. Code Ann. §§ 154.131, 154.009 (Vernon 2008). However, the basis for such an order’s application of the child support guidelines is to be the net resources of the obligor during the relevant time period (that period for which the trial court granted retroactive child support). Id.; Flores v. Cuevas, 2007 WL 624716, at *4 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Absent evidence of obligor’s earnings during the pertinent time, the trial court can neither consider nor calculate the obligor’s net resources for that period. In re J.A.J., 283 S.W.3d 495, 500 (Tex. App.—Beaumont 2009, no pet.). Nor may the trial court calculate retroactive child support based on the obligor’s current wages, but must presume that the obligor was making minimum wage for forty hours a week and calculate retroactive child support accordingly. See id.; Tex. Fam. Code Ann. § 154.068 (Vernon 2008); In re M.M., 980 S.W.2d 699, 700 (Tex. App.—San Antonio 1998, no pet.) (applying minimum wage presumption to retroactive child support award).
Blanca Ayala testified that Juan “currently” made $750.00 a week, but the trial court was presented no evidence of Juan’s income during the relevant time period. Absent such evidence, the trial court should have presumed that Juan was making minimum wage for forty hours a week and calculated retroactive child support accordingly. See Flores, 2007 WL 624716, at *4. (In determining the amount of retroactive support, and in the absence of relevant evidence of earnings, "the trial court should have presumed that Flores had wages or salary during the relevant time period equal to the federal minimum wage for a 40-hour week." ).
By granting child support on a different basis, with no evidence of Juan’s net resources at the pertinent times, the trial court abused its discretion and the error appears on the face of the record. I would sustain Juan’s second point of error and remand this case to the trial court for further hearings as necessary to establish whether the trial court should order retroactive child support and the amount, if any, that should be awarded. Accordingly, I dissent.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Massengale.