In re I.J.K.

• Docket Number: 08-22-00055-CV
• Decision Date: 28 April 2023
• Parties: IN THE INTEREST OF: I.J.K. and E.A.K.,Children.
• Court: Texas Court of Appeals

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IN THE INTEREST OF: I.J.K. and E.A.K.,Children.

No. 08-22-00055-CV

Court of Appeals of Texas, Eighth District, El Paso

April 28, 2023

Appeal from the 383rd Judicial District Court of El Paso County, Texas (TC# 2019DCM7783)

Before Rodriguez, C.J., Palafox, J. and Soto, J

MEMORANDUM OPINION

LISA J. SOTO, JUSTICE

J-P.K. (Father) and S.K.K. (Mother) are the parents of three children born during their marriage. Father appeals from the trial court's order naming the parents joint managing conservators and setting Father's child support obligations at 30% of his monthly net resources. On appeal, Father contends that the trial court lacked subject-matter jurisdiction to enter the order because the parties were not separated when the Office of the Attorney General (OAG) filed its initial petition seeking a conservatorship and support order. Father further contends that the trial court erred by (1) naming the parties joint managing conservators, rather than naming him the sole managing conservator; (2) failing to give him a child support credit for a fourth child living in another household; (3) failing to give him a travel credit to reduce his monthly child support obligations; and (4) awarding attorney's fees to Mother. He further contends that the OAG used an incorrect method in determining he was delinquent in his child support payments. For the

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reasons set forth below, we reverse and remand the trial court's determination that Father was not entitled to a child support credit with respect to his fourth child but affirm the trial court's judgment in all other respects.

I. Factual and Procedural Background

Father and Mother were married in April 2014. Father was living in Canada at the time of their marriage then moved to Pennsylvania in September 2015, where Mother and their first child, I.J.K., (born January 2015) were living at the time while Mother finished pharmacy school. While living together in Pennsylvania, they had their second child, E.A.K. (born August 2017). Mother received a job offer in January 2018 in El Paso, Texas, and she moved there with the children. Although the parties disagree somewhat on the details of their relationship after that time, according to Father, he joined Mother in El Paso approximately six months later and lived with her and the children there until Mother "kicked [him] out." He then moved to Dallas where his job was located.^[1]

A. The OAG's petition

On December 9, 2019, the OAG filed a petition in the trial court alleging the parties were separated and asking the court to enter a conservatorship and child support order for current and retroactive support for the parties' two children. Father and Mother both retained attorneys who filed answers to the petition and both requested an award of attorney's fees. In February 2020, an associate judge entered a temporary order stating that Father had agreed to pay child support while the matter was pending based on a finding that they had two children at the time. In May 2020, Mother had a third child, D.M.K.^[2] Following a hearing at which Father and Mother both appeared

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with counsel, the associate judge entered an Order in Suit Affecting the Parent Child Relationship (SAPCR) on October 2, 2020, naming the parents joint managing conservators of the three children, naming Mother the primary managing conservator with the right to designate the children's residence, and giving Father standard visitation rights. The associate judge found that Father's monthly net resources were $7,904.37 and set Father's child support obligations at 30% of the same in accordance with the Texas Family Code statutory guidelines for the three children living with Mother.

B. The de novo hearing

Thereafter, Father requested a de novo hearing solely on the issue of his child support obligations. Significant to this appeal, Father raised two challenges to the associate judge's order: (1) whether he was entitled to a child support credit for a fourth child in another household he claimed he had fathered with another woman prior to the parties' marriage; and (2) whether he was entitled to a travel credit to lower his monthly child support obligations to account for his travel expenses to visit his three children in El Paso. Mother also requested a de novo hearing on the issue of Father's net resources, contending that the associate judge should have used Father's 2020 year-to-date income rather than his 2019 income to determine his child support obligations. And again, Mother requested an award of attorney's fees.

1. Evidence regarding Father's request for a support credit for his other child

At the de novo hearing, Father testified he had a 14-year-old daughter living in Cameroon, Africa, who was born to a woman with whom he had been in a relationship prior to his marriage to Mother. Father acknowledged that there was no court order in place requiring him to provide his daughter with support; however, he testified that he was obligated by Cameroon law to support his daughter, as his name was on her birth certificate. According to Father, he had been sending

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approximately $300 to $500 each month to his sister and a minister, both of whom lived in Cameroon, as support for the child; he provided three years of receipts for the payments to the minister.^[3]

Mother did not dispute that Father had a child living in Cameroon, acknowledging that on the eve of their wedding, Father had informed her of the child. According to Mother, she even filed for a "green card" for the child to come to the United States at the same time that she filed for Father's green card. Mother testified that although she wanted Father to support the child in Cameroon, she did not want Father to have contact with the child's mother, and the parties agreed that support payments for the child would "go through [her]." Mother further testified that because Father was unemployed for the first two years of their marriage, she sent $300 to $400 monthly payments to the minister in Cameroon, presumably for child support.^[4] Mother nevertheless posited that any money Father later sent to the minister in Cameroon was intended for ministry support rather than child support. And because she believed Father never supported the child in the past and did not intend to do so in the future, she argued he was not entitled to a support credit for the child.

2. Evidence regarding Father's request for a travel credit

At the hearing, Father testified that he had been spending approximately $1,100 a month when he traveled from Dallas to El Paso to visit the children, which included both his airfare and lodging. And he asked the trial court to provide him a travel credit in that amount to reduce his monthly child support obligations. Mother objected to the travel credit, expressing her opinion that

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Father's expense estimate was excessive. Instead, she offered to pay half of Father's airfare to travel to El Paso if he booked it in advance for a reasonable rate, and she further offered her home for Father to stay and one of her vehicles for him to use when he was visiting the children.

3. Evidence regarding Mother's request for attorney's fees

Mother's attorney testified Mother had incurred $7,115 in attorney's fees to date and provided his billing records in support thereof.

C. The court's ruling

At the conclusion of the de novo hearing, the trial court expressly stated it would not give Father a child support credit for his "child born out of the marriage," and it would only consider his obligation to pay child support for the three children who were before the court, despite stating that Father "needs to continue" to support his fourth child.

The trial court entered its final SAPCR order confirming the associate judge's ruling designating the parents joint managing conservators of the children, with Mother serving as the primary conservator and Father having standard visitation rights. The court calculated Father's monthly support obligations based on the standard statutory guidelines for three children, finding that Father's monthly net resources were $8,323 based on his 2020 income and ordering him to pay 30% of the same to Mother. The court also determined that Father's child support payments were delinquent in the amount of $757.08 as of March 21, 2021, and ordered Father to pay an additional $100 each month in child support until the arrearage was paid in full.

The court impliedly denied Father's request for a travel credit and instead ordered Mother and Father to each pay 50% of any airfare for the transportation of either the children or the Father as necessary for Father to exercise his visitation rights.^[5] In addition, the court ordered Mother to

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"provide a bedroom for [Father] to stay in during his period of possession" and to "provide a vehicle to [Father] to use while he is in El Paso, Texas during his periods of possession . . . so long as that vehicle is operational."

And finally, the trial court entered a judgment for $3,557.50 in attorney's fees against Father to be paid as additional child support, ordering Father to pay an additional $100 per month until the judgment was paid in full. This appeal followed.

II. Issues on Appeal

Father raises six issues on appeal. In Issue One, Father contends the trial court lacked jurisdiction to hear the OAG's SAPCR petition because the OAG falsely stated that the parties were separated at the time it filed suit. In Issue Two, he contends the trial court erred by naming the parties joint managing conservators rather than naming him sole managing conservator. In Issue Three, he contends the trial court erred by failing to give him a child support credit for the child he had outside the marriage. In Issue Four, he contends the trial court erred by failing to reduce the amount of his monthly child support obligations with a travel credit. In Issue Five, he contends...