Bailey v. Bailey

• Decision Date: 25 February 1999
• Docket Number: No. 07-98-0047-CV,07-98-0047-CV
• Citation: 987 S.W.2d 206
• Parties: Rodney Alton BAILEY, Appellant, v. Deborah Ann BAILEY, Appellee.
• Court: Texas Court of Appeals

Page 206

987 S.W.2d 206

Rodney Alton BAILEY, Appellant, v. Deborah Ann BAILEY, Appellee.

No. 07-98-0047-CV.

Court of Appeals of Texas,

Amarillo.

Feb. 25, 1999.

Underwood, Wilson, Berry, Stein & Johnson, P.C., Christopher K. Wrampelmeier, Amarillo, for appellant.

Law Offices of George Harwood, George Harwood, Amarillo, for appellee.

Before BOYD, C.J., and QUINN and REAVIS, JJ.

BRIAN QUINN, Justice.

This appeal touches upon the matter of child support and the extent of a trial court's authority to dictate its manner of disbursement. Through four issues, Rodney Alton Bailey (Rodney) posits that the trial court abused its discretion in: 1) segregating a portion of the support into an account and specifying how the monies were to be expended; 2) requiring both parents to jointly determine how the sum would be spent; 3) retaining authority to disburse the sum if the parents could not jointly agree as to its disbursement; and 4) awarding to the child the funds remaining in the account once the obligation to support ends. We affirm.

Background

Rodney married Deborah A. Bailey (Deborah). Their union begat two sons, Christopher and Jeffrey. Yet, time proved detrimental to the marriage, for as it passed, so too did the spouses' desire to remain together. Eventually, the couple divorced and the court appointed Deborah the managing conservator of both children. Years later, Rodney moved the court to alter the conservatorship arrangement. Specifically, he sought appointment as the sole managing conservator of Jeffrey.

A hearing was apparently held on the motion, but the evidence proffered at such time is unknown to us, for we have no reporter's record. Nevertheless, the parties tendered to us an "Agreed Statement of the Case." According to that document and the appellate record, the court did not designate Rodney as Jeffrey's managing conservator. Rather, via a document entitled "Order on Motion to Modify in Suit Affecting the Parent-Child Relationship," it bestowed on both parents the status of joint managing conservators. Furthermore, Deborah was granted the right to establish the primary residence of Christopher, receive child support from Rodney, "and to hold or disburse [the support] for the benefit of" the minor. In turn, Rodney was permitted to establish the primary residence of Jeffrey, receive support from Deborah, and "to hold or disburse [the support] for the benefit of" Jeffrey.

In the very same order, the court also set the amount of child support payable by each parent. Rodney was directed to pay Deborah $660 per month. Yet, Deborah was not ordered to directly pay Rodney anything. Instead, the court directed her to deliver $400 per month to the court clerk. Then, it entered the following directive:

1. The Clerk shall pay $300 to Rodney ... for the support of the child Jeffrey; and

2. The Clerk shall deposit the remaining $100.00 into a joint checking account.... Such monies are to be used for the general health, maintenance, education and welfare of the child Jeffrey.... If the parties cannot agree as to the disposition of such funds, then either party may petition the Court for an order authorizing distribution. All sums remaining in said account, at the time the obligation to pay support ceases, shall be delivered to and become the property of Jeffrey....

It is this portion of the order about which Rodney complains and with regard to which he asserts his four issues on appeal.

Discussion

Before addressing each point asserted, we find it beneficial to discuss the purpose of child support. Long ago, the jurisprudence of this state recognized that a parent had a "natural and moral obligation" to provide for or support his offspring. Lane v. Phillips, 69 Tex. 240, 243, 6 S.W. 610, 611 (1887). Initially, the duty fell primarily upon the father. Gomez v. Perez, 409 U.S. 535, 536, 93 S.Ct. 872, 874, 35 L.Ed.2d 56, 58-59 (1973). Now, it is indisputable that both parents must shoulder the task. R.W. v. Texas Dept. of Protective & Reg. Servs., 944 S.W.2d 437, 440 n. 4 (Tex.App.--Houston [14th Dist.] 1997, no writ); In re R.D.S., 902 S.W.2d 714, 719 (Tex.App.--Amarillo 1995, no writ). In other words, the obligation to support is joint. ¹ And, it remains joint even though the child's parents divorce. Indeed, entrusting the child to an ex-spouse does not relieve the parent of his or her responsibility to assure that the child is properly cared for, unless the ex-spouse has the sole and exclusive care, custody, and control over the minor. Harrington v. State, 547 S.W.2d 621, 624 (Tex.Crim.App.1977).

Thus, a mother is not entitled to ignore the needs of her child simply because the father provides a monthly support payment. Nor does the payment relieve the father from seeing that the child is otherwise receiving proper care. For example, if the child involved were an infant and his mother (the managing conservator) had become mentally or physically incapable of caring for it, could it rationally be said that the father may allow the child to waste away simply because he sends a monthly check? Or, if the father knew that his ex-wife were physically abusing the infant, is the father legally justified in ignoring the circumstance solely because he pays his obligatory support? Under each circumstance, the answer is obviously no. This is so, because both parents owe a continuing duty to the child. Harrington v. State, supra. In short, the provision of financial support satisfies only one aspect of the parents' duty. It merely creates a pool of funds from which the economic needs of the child can be redressed. The other aspect concerns assurance that the needs are actually being redressed, and both parents must fulfill these needs as long as they have some right to the care, custody, and control of the youth.

Next, the scope of the duty to support was, and is, quite plenary. As alluded to above, it encompasses the rather boundless task of maintaining and educating, see, e.g., Cook v. Mann, 40 S.W.2d 72, 74 (Tex. Comm'n App.1931), which at a minimum obligates the parents to provide the child those things necessary in sickness and health, Mitchell v. Davis, 205 S.W.2d 812, 814 (Tex.Civ.App.--Dallas 1947, writ ref'd), such as clothing, food, shelter, medical and dental attention, and education. TEX. FAM.CODE ANN. § 151.003(a)(3) (Vernon 1996); see Cooper v. Cooper, 513 S.W.2d 229, 234 (Tex.Civ.App.--Houston [1st Dist.] 1974, no writ) (noting that the duty to support may encompass more than the mere provision of necessaries).

Finally, decisions regarding child support and its payment lie within the trial court's considerable discretion. Such discretion is not abused so long as the decision comports with guiding rules and principles. In re Striegler, 915 S.W.2d 629, 637 (Tex.App.--Amarillo 1996, writ denied).

Issue One

Did the trial court err in expressly ordering that $100 of the $400 payable by Deborah be used for a specific purpose? That is the first question asked of us. We answer in the negative.

A trial court may direct "either or both parents to support a child in the manner specified by the order." TEX. FAM.CODE ANN. § 154.001(a) (Vernon 1996) (emphasis added). By using the phrase "in the manner specified by the order," the legislature implicitly granted the trial judge leeway in determining the manner in which support is to be used.

So long as the manner specified by the court rationally comports with the purpose of child support, we are hard-pressed to say that the court exceeded the grant of authority implicit in section 154.001(a) and abused its discretion. This is so, for the simple reason that the court's action followed applicable guidelines and principles. And, of import is the truism that the purpose of child support is to fulfill the monetary aspect of a parent's duty to support. ²

Further, the words used by the court at bar in describing the manner for which the $100 can be expended, that is for the "general health, maintenance, education and welfare of ... Jeffrey" are nothing other than synonyms for the general duty of a parent to support a child. Again, the duty imposed by law includes the task of maintaining the child and caring for his needs both physically, medically, and educationally. Mitchell v. Davis, supra; TEX. FAM.CODE ANN. § 151.003(a)(3). Assuring that a portion of the support payment is used for the "general health, maintenance, education and welfare of" Jeffrey is simply assuring that the boy is cared for physically, medically, and educationally.

In sum, the directive informing Rodney and Deborah how the funds were to be spent comported with the purpose of child support. Thus, the trial court not only had the authority to so restrict their use, but also acted within its discretion.

Issue Two

Did the court err in ordering the child's mother to participate in the decision concerning how the $100 was to be expended? That is the second question posed by Rodney. To it, we also answer in the negative.

Both Rodney and Deborah had, and have, a duty to support Jeffrey, their son. In re R.D. S., supra. So too, are they the joint managing conservators of the boy. As such, each has the rights and duties vis-a-vis the boy as specified by the court. See TEX. FAM.CODE ANN. § 153.134(b)(2) & (4) (Vernon 1996) (directing the court to allot the rights and duties with regard to the child between the joint conservators). One such right bestowed upon both included the right to confer with the other parent "to the extent possible before making a decision concerning the health, education, and welfare of the child." Id. at § 153.073(a)(1)(B). In other words, the court authorized both parents to jointly make decisions "to the extent possible," about the boy's health, education, and welfare. In so ordering the parents to act, it implicitly bound them with the duty to make the decisions jointly, to the extent possible. ³

Section 153.134(b)(2) of the Family Code obligates the court to "specify...