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robert franklin

September 16, 2019 by Robert Franklin, JD, Member, National Board of Directors

The unbelievable just got more so, if that’s possible.

I wrote about the Ryan West case here and here.  It’s one of the most remarkable travesties of justice I’ve seen in a long while.  I won’t reprise all the facts here.  Read my two previous posts for a sense of just what can happen when judges decide how they want to rule and then go about finding facts and imagining law to fit their preconceived notions.

Ryan West has a daughter, Alanna, with his previous wife.  The two divorced.  Ryan earns a good living and is the best of fathers; his ex is voluntarily underemployed and spends little time with Alanna.  The judge who granted their divorce gave Ryan parenting time of between 70% and 80%.  In short, Alanna lives with him and his girlfriend Kym. 

But, despite his being the custodial father, the judge ordered him to pay child support to the non-custodial mother.  Seriously, that’s what she did.  That was based solely on Ryan’s income and ignored the fact that his ex testified under oath that she was capable of earning $80,000 per year, but didn’t because she preferred to spend more time with her daughter.  That is, she admitted to being intentionally underemployed. Under normal circumstances, a court would impute to her $80,000 annually and calculate child support accordingly.  But the judge ignored his ex’s earning ability.

That meant she ordered Ryan to pay over $1,300 in child support, despite being the custodial parent and caring for Alanna about three-fourths of the time. 

In Texas, where all this is taking place, the child protective agency pays foster parents about $680 per month to care for a single child.  Obviously, the state believes that to be sufficient to meet a child’s needs, assuming he/she has no special ones.  Now, let’s assume that that $680 is borne proportionately by each parent based on the parenting time of each.  Based on 75% parenting time, that would mean Ryan would incur $510 of Alanna’s expenses and his ex $170.  Under the judge’s order then, Ryan incurs those expenses plus paying his ex $1,300 per month for a total outlay of $1,810.  He also pays $100 for her health insurance, or $1,910 in all. 

By contrast, his ex incurs $170 in expenses but takes in $1,300 for a net gain of $1,130.  By the way, she doesn’t need the money.  Her new husband earns $13,000 per month, a fact that’s in evidence in the case.

Sound fair?  Sound reasonable?

Now comes the even more unbelievable part.  In an opinion that looks very much like “sentence first, trial later,” an appellate court has ruled that everything the trial court did was proper.  It affirmed every part of the judge’s order.

It did so despite the fact that the judge in part simply made up law.  It did so despite the fact that the trial court ignored evidence.  It did so despite the fact that the lawyer for Ryan’s ex filed no brief with the Court of Appeals.  In short, Judge Bill Whitehill seems to have been acting as the attorney for Mom.

How does Whitehill get around the fact that West is clearly the custodial parent and is therefore owed child support by his ex? 

[T]he possession order gives Mother possession of Daughter for roughly seven or more days a month during the school year and thirty days during the summer, plus certain holidays. Both parents are “custodial parents” to a degree.

That of course is true of every case in which one parent has the child in his/her care as much as one day per year.  After all, who’s to say that doesn’t constitute “custody” of a sort.  Well, decades of case law for one, but Whitehill cited no case law for his remarkable claim.

What about the fact that the trial court refused to impute income to Mom even though she admitted under oath to being voluntarily underemployed?  Simple, since she’s not the “non-custodial” parent (see above), imputation of income is unnecessary. QED.

As of now, this case, having been issued by a state appellate court, has value as precedent.  That is, other courts may now cite it as authority in future rulings.  Imagine what those rulings might look like.  Mom has little Andy or Jenny 90% of the time.  Dad is truly a deadbeat; he has minimal or no earnings.  Mom has a good job.  Result?  Mom pays Dad about 20% of her net earnings, exactly as West does. 

Make sense?  No, but count on the fact that plenty of lawyers will cite this case for exactly the proposition above.  Meanwhile, whatever happened to the idea that child support was for the child?  Plainly, it’s not in this case as both parents have enough money to provide adequately for her.

West intends to seek a rehearing and, failing that, appeal to the Texas Supreme Court.  His lawyer has gotten numerous calls from lawyers in the Dallas area concerned about the effect of the ruling on precedent.  Some of them intend to file amicus briefs in support of the motion for rehearing. 

I’ll keep you posted on what develops.

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