Default Judgment, Disabilities, & Child Support: Opinions, May 3, 2018

The First District Court of Appeals released a memorandum opinion this morning in Dobyanski v. Breshears, No. 01-17-00407-CV, in which the Court of Appeals sustained Father’s restricted appeal and reversed an increase in child support granted on a default basis. Though the case is about child support, it also concerns disability findings and the evidence necessary to establish them.

Mother and Father entered into an agreed order which required Father to pay $490/mo in child support until the child reached the age of 18. About five years later, Mother petitioned for a modification and increase in monthly support.

Father was not present at the modification hearing. Mother testified (and provided doctor’s reports) to the child’s diagnoses of vaccination delay, oppositional defiance disorder, ADHD, developmental language disorder, and autism spectrum disorder. She also testified that the child’s schedule and routine could not vary from day to day and that she believed the child’s disability would prevent her from working full time.

Regarding the father’s financial status, she testified that he was employed as a conductor for a railroad. She also presented a copy of an agreed order from another case in which Father was ordered to pay child support of $600/mo. That agreed order from 2015 showed Father’s gross monthly resources were $7,437.56 and his net monthly income $5,423.30.

Mother requested an increase to $1,200 in monthly child support. She conceded that under the guidelines, Father would not owe $1,200/mo unless his gross monthly income was $9,200. Mother testified that she believed Father was capable of earning that much because he was always telling her he could not visit the child because he was working.

The trial court entered a default order which found: 1) there had been a substantial and material change in circumstances; and 2) the child required substantial care and personal supervision and would not be capable of self-support as long as his disability existed. The order increased the child support obligation to $1,200/mo and to continue beyond the child’s age of 18.

Father filed a restricted appeal, alleging Mother failed to adduce evidence of the parties’ net resources that justified the amount of child support or that the support should continue beyond the child’s 18th birthday.

The Court of Appeals found that the evidence did not support the finding that the child was disabled because Mother’s testimony that the child, aged 6, requires a “very high level of care ” and constant monitoring “does not explain how [the child] requires care beyond that required for a typical child of his age or the extent to which any care or supervision is made necessary by his diagnoses.” Further, the list of diagnoses “provides no information concerning the severity of those conditions or how they may limit his ability to function,” nor did the evidence show the extent to which the mother “takes more time or incurs additional expense to care for and supervise [the child].”

Finally, the evidence before the trial court did not show the father’s current net resources or the additional financial support that is necessary to provide the child with substantial care and personal supervision indefinitely into the future.

The Court of Appeals specifically cited and relied upon Justice Guzman’s concurrence in the denial of petition for review in In re D.C., No. 16-0543, in which Justice Guzman essentially said–rightly– that the caselaw regarding adult disabled child support and the evidentiary requirements thereof under TFC §154.302 was all over the map because of the ambiguity of the statute and calling on the Legislature to provide the courts with more guidance (which I blogged about here). Today’s opinion appears to be a signal to the trial courts that at least the First District Court of Appeals is going to be a lot more rigorous in its review of evidence in support of disability findings under Section 154.302 in the future.





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