In re Interest of K.M.B.

• Decision Date: 20 July 2020
• Docket Number: No. 05-19-00591-CV,05-19-00591-CV
• Parties: In the INTEREST OF K.M.B. and P.J.B., Minor Children
• Court: Texas Court of Appeals

606 S.W.3d 889

In the INTEREST OF K.M.B. and P.J.B., Minor Children

No. 05-19-00591-CV

Court of Appeals of Texas, Dallas.

Opinion Filed July 20, 2020

Neil Lee Durrance, Law Office of Neil L. Durrance, 1108 N Locust Street, Denton, TX 76201-2958, for Appellant Erich Barnhill.

Elizabeth Mary Johnson, Calabrese Budner, LLP, 5944 Luther Lane, Ste. 875, Dallas, TX 75225, Georganna L. Simpson, Georganna L. Simpson, P.C., 1349 Empire Central Drive, Woodview Tower, Suite 600, Dallas, TX 75247-4042, Jeremy C. Martin, Martin Appeals PLLC, 2101 Cedar Springs Rd., Ste. 1540, Dallas, TX 75201, Susan Vrana, Susan Vrana Family Law, 900 Jackson St., #260, Dallas, TX 75202, for Appellee Jennifer Entzminger.

Deterrean Gamble, John B. Worley, Attorney General Office, Child Support Division, P.O. Box 12017 (MC 038-1), Austin, TX 78711-2017, Matthew Garcia, Dallas County Domestic Relations Office, CS Unit 421, 600 Commerce St., Ste. 128, Dallas, TX 75202-6606, for Appellee Attorney General of Texas.

John Creuzot, Dallas County District Attorney, Frank Crowley Courts Building, 133 N. Riverfront Blvd., LB19, Dallas, TX 75207, for Appellee State of Texas.

Before Justices Bridges, Molberg, and Carlyle

OPINION

Opinion by Justice Molberg

E.W.B. (Father) appeals the trial court's order increasing his child support obligation to his two minor children, K.M.B. and P.J.B., paid monthly to J.L.E., the children's mother (Mother). In three issues, Father argues the trial court improperly included his military allowances in its calculation of net resources for purposes of assessing his child support obligation; abused its discretion by finding a material and substantial change in circumstances justifying a modification in his child support obligation; and abused its discretion by awarding Mother attorney's fees in the amount of $4,000. We affirm the trial court's judgment.

BACKGROUND

Father is an active duty serviceman in the United States Army Reserve. The trial court signed a final decree of divorce between Mother and Father on December 19, 2011. Mother was awarded custody of K.M.B. and P.J.B. The divorce decree ordered Father to pay child support in the amount of $673 per month and retroactive child support—that should have been previously paid to Mother but was not—in the amount of $3,000, to be paid in specified installments. The trial court further ordered that Father's monthly child support obligation be automatically deducted from his pay and forwarded to Mother.

In April 2018, a negotiated conference was held and Father agreed to increase his monthly child support obligation to $906. The trial court entered a child support review order reflecting the support modification agreement on May 7, 2018. The May 2018 child support review order acknowledged the order was made pursuant to the parties' agreement and found "there has been a material and substantial change in the circumstances of the children or parties, or it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines...."

Within thirty days of entry of the May 2018 child support review order, Mother moved for a new trial. On July 2, 2018, the trial court granted Mother's motion for new trial and vacated the May 2018 child support review order. The record on appeal reflects Father did not appeal, but rather agreed to, the trial court's July 2018 order.¹

According to Mother, the calculation of Father's net resources that served as the basis of the April 2018 agreement and the May 2018 order was incorrect. Specifically, Mother contended Father's military allowances for housing and subsistence, paid to him monthly, were not—but should have been—included as resources for purposes of Father's child support assessment under the statutory guidelines. Father, however, protested that military allowances are not a resource under the child support guidelines.

Several proceedings ensued. Ultimately, after conducting a hearing on March 5, 2019, the trial court entered the child support review order that is the subject of this appeal on May 9, 2019 (May 2019 order). The May 2019 order found Father's monthly net resources, including his monthly paid military allowances for housing and subsistence, are $6,599.20; raised Father's monthly child support obligation from $673 to $1,659.80; and ordered Father to pay Mother attorney's fees in the amount of $4,000.

On March 8, 2019, Father filed a request for the trial court to enter findings pursuant to section 154.130 of the family code. See TEX. FAM. CODE § 154.130. In its May 2019 order, the trial court made the following findings:

The Court finds, since the date of the rendition of the order entitled, Final Decree of Divorce , signed on December 19, 2011, the circumstances of the parties and/or children have materially and substantially changed, or have become inappropriate or unworkable under existing circumstances, regarding child support and medical support for the children. The Court further finds that modification of the prior order regarding child support and medical support is appropriate and is in the best interest of the children. The Court finds that modification of the prior order is appropriate, and is in the best interest of the children.

The trial court made the following child support guideline findings:

A. The Court finds, pursuant to § 154.130, Tex. Fam. Code Ann.:

a. the monthly net resources of the Obligor per month are $6,599.20;

b. Obligor is obligated to provide support for the following:

(1). The number of children before the Court is 2.

(2). The number of minor children not before the Court residing in the same household with the Obligor is 0.

(3). The number of children not before the Court for who Obligor is obligated by a court order to provide child support, and who are not counted under paragraph (1) or (2) is 0.

c. The percentage applied to the Obligor's net resources for child support is 25%.

On these findings, the trial court ordered Father to pay statutory child support for K.M.B. and P.J.B. in the amount of $1,649.80 per month. Father filed a motion for new trial on May 29, 2019, which was denied by operation of law.

STANDARD OF REVIEW

The trial court has broad discretion to set or modify child support. In re A.M.W. , 313 S.W.3d 887, 890 (Tex. App.—Dallas 2010, no pet.). We will not disturb a trial court's ruling on a support order absent a clear abuse of discretion. Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990). The trial court abuses its discretion if it acts in an arbitrary and unreasonable manner or without reference to any guiding principles. Id. ; Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 242 (Tex. 1985). Under this standard, the legal and factual sufficiency of the evidence are relevant factors but are not considered as independent grounds of error. In re M.C.M. , No. 04-15-00565-CV, 2016 WL 3181574, at *2 (Tex. App.—San Antonio June 8, 2016, no pet.) (mem. op.). We review the evidence in the light most favorable to, and indulge every legal presumption in favor of, the trial court's ruling. Id. If some evidence of a substantial and probative character supports the trial court's decision, there is no abuse of discretion. In re S.E.K. , 294 S.W.3d 926, 930 (Tex. App.—Dallas 2009, pet. denied).

We review a trial court's statutory interpretation of the proper method to calculate child support de novo. In re P.C.S. , 320 S.W.3d 525, 532 (Tex. App.—Dallas 2010, pet. denied). Our primary task in construing a statute is to ascertain and give effect to the legislature's intent by first looking at the express language of the statute according to its plain and ordinary meaning, unless doing so would cause an absurd result or a contrary intention is evident from the context. Id.

APPLICABLE LAW

The starting point for assessing child support liability under the Texas Family Code is to calculate the child support obligor's monthly "net resources" and apply statutory guidelines to that amount. TEX. FAM. CODE §§ 154.061(a), 154.062, 154.125. Section 154.062 of the family code provides an all-inclusive definition of "net resources" and then specifies certain sums which are not considered "resources" as well as certain sums the court must deduct from its calculation of net resources. Id. § 154.062. The amount of child support assessed under the guidelines is presumed reasonable, in the best interest of the child, and appropriate. Id. § 154.122. "Resources" includes:

(1) 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);

(2) interest, dividends, and royalty income;

(3) self-employment income;

(4) net rental income ...; and

(5) all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.

Id. § 154.062(b). "Resources" does not include:

(1) return of principal or capital;

(2) accounts receivable;

(3) benefits paid in accordance with the Temporary Assistance for Needy Families program; or

(4) payments for foster care of a child.

Id. § 154.062(c). The language of section 154.062(b)(5) indicates the legislature intended that "all receipts of money that are not specifically excluded by the statute ( section 154.062(c) ), whether nonrecurring or periodic, whether derived from the obligor's capital or labor or from that of others, must be included in the definition of ‘resources.’ " In re P.C.S. , 320 S.W.3d at 537.

ANALYSIS

The Trial Court Made The Necessary Findings Under Section 154.130

Although not presented as an independent issue, we begin by...