Court orders in Texas almost always provide for automatic decreases in the event one child turns 18, graduates high school, etc. A few cases have upheld automatic future INCREASES in child support. In re D.S., 76 S.W.3d 512 (Tex. App. – Houston [14th Dist.] 2002, no pet.) involved two parents who were physicians. The parents entered into an agreed order that provided that the father would pay $500 a month child support during his three years of medical residency and then pay $1,500 a month beginning on the date he would be expected to enter private practice. The father decided to take a fellowship after his three years of residency and he argued that his pay was a lot less than anticipated and he sought to reduce his $1,500 per month child support obligation that had automatically kicked in. The trial court refused to modify the prior order and the father appealed.
The Houston Fourteenth Court of Appeals held:
Automatic increases in child support are generally unenforceable absent evidence showing a certain future event to trigger the change. Eikenhorst v. Eikenhorst, 746 S.W.2d 882, 886 (Tex.App.-Houston [1st Dist.] 1988, no writ) (no evidence of material and substantial change in expenses of children to support automatic increase in child support); see also Abrams v. Abrams, 713 S.W.2d 195, 196 (Tex.App.-Corpus Christi 1986, no writ) (automatic increases in child support improper absent sufficient evidence showing anticipated future needs of children). The record contains sufficient evidence showing a future event justifying the automatic increase–Leslie’s completion of his orthopedic residency in July 1999, and his anticipated entry into private practice. Significantly, the parties structured their agreement to reflect this anticipated change in future events. Paula forfeited valuable rights in consideration of Leslie’s agreement and Leslie enjoyed substantial benefits under it. Moreover, Leslie and Paula, through their attorneys, agreed in writing to the terms of the 1996 child-support order, and the court found that agreement to be in the child’s best interest. Leslie has failed to bring forth any evidence which would show otherwise. In fact, Leslie himself testified that he agreed to the 1996 order because he had provided such little support for his daughter throughout the first twelve years of her life.
We conclude that Leslie’s challenge to the 1996 agreed order is an impermissible collateral attack on the judgment. In addition, even if Leslie could have maintained a collateral attack on the 1996 agreed order, he would not prevail because the trial court did not abuse its discretion in refusing to find the order unenforceable.
Creative lawyers could imagine other situations where automatic increases in child support, without the need to hire lawyers and bring a new, modification lawsuit, would make sense. For example, a parent’s child support would increase to an agreed amount when the parent graduates law school and passes the bar exam or a child support could automatically increase if the parents mutually decide that the child should attend private school. It is unlikely a judge would make such an order for an automatic increase in child support in a contested trial, but the above case could be used to persuade a judge to accept such an agreement between the parties. In re Lee, 411 S.W.3d 445 (Tex. 2013), would seem to say that a judge must accept such an order if it is agreed to in mediation.