Opinion
05-20-01079-CV
02-02-2023
IN THE INTEREST OF L.S.B., A CHILD
On Appeal from the 469th Judicial District Court Collin County, Texas Trial Court Cause No. 469-51173-2010
Before Justices Partida-Kipness, Reichek, and Goldstein
MEMORANDUM OPINION
BONNIE LEE GOLDSTEIN, JUSTICE
Mother appeals the trial court's September 11, 2020 judgment reducing Father's obligation to pay child support; making the reduction retroactive to January 1, 2016; ordering Mother to return $35,721.40 in overpaid child support; ordering the overpayment of child support to be offset against Father's future child support obligations; and terminating Father's obligations to pay child support as of July 31, 2020 based on the prepayment of child support, pay for health insurance for the child L.S.B., and pay a portion of L.S.B.'s unreimbursed medical expenses. In six issues, Mother argues the trial court erred in failing to follow the provisions of the family code in determining Father's monthly net resources, reducing child support with insufficient evidence of a material and substantial change in circumstances, applying the reduction in child support retroactively, finding that Father overpaid child support in the amount of $35,721.40, terminating Father's obligation to provide medical insurance for the child L.S.B., and terminating Father's obligation to pay a portion of L.S.B.'s healthcare expenses not covered by insurance. We reverse the trial court's judgment and remand for proceedings consistent with this opinion.
BACKGROUND
In May 2013, the trial court signed a final divorce decree dissolving the marriage between Mother and Father and ordering that Father pay $1176.09 per month in child support. The trial court made the following child support guideline findings in accordance with family code section 154.130:
We note that the amount of child support awarded comports with the guideline findings and net resources of $4704.35.
1. The application of the percentage guidelines in this case would be unjust or inappropriate.
2. The net resources of [Father] per month are $4,704.35.
3. The net resources of [Mother] per month are $0.00.
4. The percentage applied to the first $7,500 of [Father's] net resources for child support is 25 percent.
5. The specific reasons that the amount of support per month ordered by the Court varies from the amount computed by applying the percentage guidelines of section 154.125 of the Texas Family Code are: (a) obligor has the ability to pay additional child support; (b) obligor will not be contributing in any way to the financial support of the child the subject of this suit during obligor's incarceration; (c) obligee will be paying 100% of the child's living expenses; (d) obligor does not
have a court-ordered right to possession of the child; (e) obligor's living expenses are being paid by a third-party entity; and (f) it would be unjust for obligor to accumulate income during obligor's incarceration at the expense of the child's financial needs.
The decree also ordered Father to maintain health insurance for L.S.B. and ordered Father and Mother each to pay fifty percent of all L.S.B.'s unreimbursed medical expenses.
On January 6, 2016, Father filed a pro se motion to vacate and set aside judgment for dissolution of marriage and final divorce decree. Father asserted that he had just come into possession of documents showing that Mother "had commenced divorce proceedings and received orders of adjudication from Colombia jurisdiction's court," and "all current Orders relating to the Divorce and subsequent child support are now null and void." That same day, Father also filed (1) a motion to modify the child support order and (2) a motion to stay child support orders pending resolution of his motion to modify child support order and motion to vacate.
On February 15, 2017, the trial court appointed attorney ad litem to represent Mother after Mother had been cited by publication but failed to file an answer or make an appearance. The attorney filed an answer on Mother's behalf.
On February 21, 2017, the trial court entered an order denying Father's request to vacate the trial court's judgment and denying Father's request to modify child support. That same day, the trial court also denied Father's motion to appear by telephone and motion to stay.
On July 31, 2018, a panel of this Court reversed the trial court's judgment, concluding the trial court abused its discretion by refusing to allow appellant to appear by telephone. In Int. of L.S.B., No. 05-17-00282-CV, 2018 WL 3629008, at *1 (Tex. App.-Dallas July 31, 2018, no pet.). The case was remanded to the trial court for further proceedings.
In the interim, on August 17, 2017, Father filed a petition to modify the parent-child relationship seeking a reduction in the amount of child support and termination of medical support because L.S.B. lived in Colombia and medical coverage in the United States would not cover L.S.B. in Colombia.
At a trial before the court on June 16, 2020, Father complained that he had not received photos of L.S.B. from Mother for seven years, and he asked the trial court to "consider an abatement of child support until we can determine if this child is alive." Mother's attorney responded that child support should be increased because Father was making more money than he was at the time of the original trial.
Father testified that "a couple months" after the divorce, his income changed because he "received a conviction of a criminal charge in March of 2013." Father testified his income in December 2012 was $4700 per month and $3100 when his "income changed in 2013." Father knew child support was being garnished from his "military retired pay," but he did not know who received the child support. Father's counsel argued that "United States statute, Title 10" superseded state law, "specifically the disposable income and the definition of disposable income for purposes of" the trial. Counsel asked the trial court to take judicial notice of United States Statute, Title 10, Armed Forces, Chapter 71, Section 1408 (4) (A)(i), "with regards to disposable income which will be comparable to net resources." Mother's counsel responded that "nowhere in the statute . . . does it say it supersedes the child support calculation in the state of Texas." The trial court advised, "I will consider the law and what is applicable to calculating the child support."
Father testified that his actual gross pay in December 2019 was $5355. Father presented exhibits purporting to show he should have been paying $526 per month in child support between 2016 and June 2020, and by his calculations he overpaid by $35,071.92 during that time. Over objection, the trial court permitted Father to testify that, to correct this overpayment, he asked the court "that an adjustment be made and abatement of the future child support payments" and that the overpayment be applied to future monthly child support. Also, over objection, Father testified the application of the overpayment to future child support would pay his child support obligation in full "through approximately mid-year of 2026," and his child support obligation would terminate before then in September 2025 when L.S.B. turned eighteen.
In closing argument, Father's counsel again asked the trial court to take judicial notice of "Section 1408 (4) (A) little I" of "Title 10, Armed Forces, Chapter 71" which "specifically defines the disposable retired pay." Counsel also asked the trial court to take judicial notice "that the federal law supersedes state law in particular when considering the child support obligation." Counsel asked for a reduction in child support retroactively to January 6, 2016, and asked for the court to offset and credit the overpayment of child support in the amount of $35,071.92 and apply it forward to future child support payments.
Mother's counsel first pointed out that there was "no testimony given today that would justify turning off [L.S.B.'s] health insurance." Mother's counsel argued that the federal statute father quoted did not "redefine net resources as they relate to Texas child support." Counsel asserted the statute defined "net disposable resource or income for other purposes," but there was no provision in the statute "about any debt irrespective of the type under the Texas Family Code." Counsel asked the trial court to "compute child support at twenty-five percent of five thousand four hundred and forty less his federal income tax withholding of three hundred twenty-seven dollars and six cents."
On September 11, 2020, the trial court entered judgment reducing Father's obligation to pay child support; making the reduction retroactive to January 1, 2016; ordering Mother to return $35,721.40 in overpaid child support; ordering the overpayment of child support to be offset against Father's future child support obligations; and terminating Father's obligations to pay child support as of July 31, 2020 based on the prepayment of child support, pay for health insurance for the child L.S.B., and pay a portion of L.S.B.'s unreimbursed medical expenses.
Mother filed a motion for new trial asserting that Father's own military retiree statement entered into evidence showed that his monthly net resources were $5113, not $2633 as found by the court, and there was legally and factually insufficient evidence to support the trial court's departure from the child support guidelines provided in Chapter 154 of the Texas Family Code. Mother also made a Request for Findings of Fact and Conclusion of Law. The record reflects no finding of facts and conclusions of law. Mother's motion for new trial was overruled by operation of law, and this appeal followed.
In six issues, Mother argues the trial court erred in failing to follow the provisions of the family code in determining Father's monthly net resources, reducing child support with insufficient evidence of a material and substantial change in circumstances, applying the reduction in child support retroactively, finding that Father overpaid child support in the amount of $35,721.40, terminating Father's obligation to provide medical insurance for L.S.B., and terminating Father's obligation to pay a portion of L.S.B.'s healthcare expenses not covered by insurance. Because of the interrelated nature of Mother's arguments, we address them together.
STANDARD OF REVIEW
The trial court has broad discretion to set or modify child support. In re K.M.B., 606 S.W.3d 889, 894 (Tex. App.-Dallas 2020, no pet.); 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 K.M.B., 606 S.W.3d at 894; 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. In re K.M.B., 606 S.W.3d at 894.
APPLICABLE LAW
Chapter 154 of the family code is concerned with ascertaining the obligor's income in order to protect the child's best interest and to maintain an adequate standard of living for the child. Id. at 896; In re A.R.W., No. 05-18-00201-CV, 2019 WL 6317870, at *9 (Tex. App.-Dallas Nov. 26, 2019, no pet.) (mem. op.). 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 Ann. §§ 154.061(a), 154.062, 154.125. Section 154.062 of the family code provides an all-inclusive definition of what constitutes "net resources" by requiring the calculation of sources of income, excluding enumerated sources of potential funds, and then mandating the deduction of certain items from the calculation of net resources. Id. § 154.062. Specifically: "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 court shall deduct the following items from resources to determine the net resources available for child support:
(1) social security taxes;
(2) federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;
(3) state income tax;
(4) union dues;
(5) expenses for the cost of health insurance, dental insurance, or cash medical support for the obligor's child ordered by the court under Sections 154.182 and 154.1825; and
(6) if the obligor does not pay social security taxes, nondiscretionary retirement plan contributions.Id. § 154.062(d). The amount of child support assessed under the guidelines is presumed reasonable, in the best interest of the child, and appropriate. Id. § 154.122.
ANALYSIS
The trial court committed reversible error by failing to make section 154.130 findings.
Although not presented as an independent issue, we begin by addressing Mother's complaint the trial court failed to make findings under section 154.130. See T ex. Fam. Code Ann. § 154.130. If either party makes a timely written request or an oral request in open court at the hearing or if the trial court's child support award varies from statutory guidelines, the court is required to make the findings specified in subsection (b). Id. If applicable, subsection (b) requires the trial court to:
The trial court issued several memorandums, including one involving child support, but made no specific 154.130 findings either as part of the memorandum or in the final SAPCR order.
[S]tate whether the application of the guidelines would be unjust or inappropriate and shall state the following in the child support order:
"(1) the net resources of the obligor per month are $ ___;
"(2) the net resources of the obligee per month are $ ___;
"(3) the percentage applied to the obligor's net resources for child support is ___%; and
"(4) if applicable, the specific reasons that the amount of child support per month ordered by the court varies from the amount computed by applying the percentage guidelines under Section 154.125 or 154.129, as applicable."Tex. Fam. Code Ann. § 154.130(b). A trial court's failure to make section 154.130 findings upon proper request is presumed reversible error unless the record affirmatively shows the requesting party suffered no harm. In Re K.M.B. at 895-96; In re S.V., No. 05-18-00037-CV, 2019 WL 516730, at *3 (Tex. App.-Dallas Feb. 11, 2019, no pet.) (mem. op.). Mother made a request for findings of fact and conclusions of law but made no specific reference to 154.130 findings. Under the record before us, mother's challenge to the legal and factual sufficiency of the evidence to support the court's departure from the child support guidelines in conjunction with her request for findings of fact and conclusions of law is sufficient to establish the presumption of reversible error and the record affirmatively establishes harm in the retroactive application of a reduction in child support, establishing an overpayment and terminating the child support obligation until December 31, 2025.
Findings under Subsection (b)(2) are required only if evidence of the monthly net resources of the obligee has been offered. Tex. Fam. Code Ann. § 154.130(c). Father submitted such evidence in the form of his retiree pay accounts and monthly pay voucher.
Section 154.130(a) of the Texas Family Code states, "Without regard to [Texas Rules of Civil Procedure] 296 through 299[,] in rendering an order of child support, the court shall make the findings required by Subsection (b) if: (1) a party files a written request with the court before the final order is signed, but not later than 20 days after the date of rendition of the order; (2) a party makes an oral request in open court during the hearing; or (3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines under [the family code]." Tex. Fam. Code Ann. § 154.130(a).
We note that the court's memorandum based its child support determination and associated obligations on requiring proof of life of the child, personal appearance, and presence in the United States without findings to depart from the original SAPCR.
The trial court erred to the extent it determined Title 10 supersedes Texas law and disposable retirement pay is comparable to the Texas definition or determination of net resources
Section 154.062(b) provides that "Resources include" certain enumerated sources or categories of income-wages, salaries, interest, dividends, royalties, self-employment income, rental income, and "all other income actually being received, including …retirement benefits, pensions . . . [and] disability . . . compensation benefits." Tex. Fam. Code Ann. § 154.062(b)(5) (emphasis added). Under general rules of code construction, the word "include" is a word of enlargement and not of limitation, and use of that word does not create a presumption that items not expressed are excluded. See Tex. Gov't Code Ann. §§ 311.005, 311.005(13); In re K.M.B., 606 S.W.3d at 897; In re P.C.S., 320 S.W.3d at 537. It is not necessary or even plausible for the legislature to list every source of a parent's potential financial resources. In Re K.M.B., 606 S.W.3d at 897 (rejecting the argument that military allowances not specifically listed as a source of income should not be considered for purposes of calculating child support). Instead, the statute specifies sums which are not considered resources for purposes of child support assessment and sums which are deducted from the calculation of net resources. Id. The wording of section 154.062(b) is broad and nonrestrictive to encompass any compensation, regardless of what it is called, and nothing in the section indicates the list of resources is exclusive. Id. Use of the word "include" in section 154.062(b) and the phrase "all other income actually being received" in section 154.062(b)(5) suggest a legislative intent to encompass additional, unlisted sources of "resources." See In re K.M.B., 606 S.W.3d at 897.
The duty to pay child support, thus, is not limited to an obligor's ability to pay from earnings but also includes the obligor's ability to pay from any and all available sources. See id.; Johnson v. Johnson, No. 05-99-01155-CV, 2001 WL 371839, at *2 (Tex. App.-Dallas Apr. 15, 2001, no pet.); see also In re I.Z.K., No. 04-16-00830-CV, 2018 WL 1176646, at *3 (Tex. App.-San Antonio Mar. 7, 2018, no pet.) (mem. op.); Finley v. Finley, No. 02-11-00045-CV, 2015 WL 294012, at *5 (Tex. App.-Fort Worth Jan. 22, 2015, no pet.) (mem. op.).
Father's military pension contributes a significant amount of income towards his ability to provide for his own needs as well as the needs of L.S.B. The record indicates these monies are paid directly to him and are available to him as discretionary spending. As Father's military retirement increases Father's income, it must be included in the calculation of resources, which as statutorily defined specifically includes retirement benefits, pensions, and disability compensation in the determination of his child support obligation to his minor child. See In re K.M.B., 606 S.W.3d at 896-97 (trial court correctly included Father's military allowances for housing and subsistence in his monthly net resources for purpose of calculating his child support obligation); In re P.C.S., 320 S.W.3d at 537.
Father presented evidence of his military retiree account statement and pay voucher which reflect a line item for, and entitlement to, concurrent retirement disability payment (CRPD)(VA compensation). Neither party asserted inclusion of CRPD as additional income and Father denies receiving CRPD as separate income. As we were not asked, based upon the record before us, we decline to address whether CRPD is a separate payment or entitlement or a replacement offset. See generally 10 U.S.C. §1414 Concurrent retirement and disability payments and 38 U.S.C. §§5304 (Prohibition against duplication of benefits) and 5305 (Waiver of retired pay).
Father's counsel asked the trial court to take judicial notice of "United States Statute, Title 10, Armed Forces, Chapter 71, Section 1408 (4) (A)(i), with regards to disposable income which will be comparable to net resources." Father's counsel argued that "Title 10" superseded state law; therefore, counsel did not address the application of the Texas Family Code to his request for a reduction in child support. Based upon the totality of the provisions in Section 1408, including the definition of disposable retired pay, we decline to agree that disposable income as defined is comparable to net resources or that such characterization negates the necessity to address the family code requirements.
Chapter 71 "Computation of Retired Pay," Section 1408 provides for the payment of retired pay in compliance with court orders.
Counsel provided no support, authority, or express or implicit statutory language for the assertion that Title 10 superseded state law, and we have found none.
The sole provision argued by Father for his calculations and pre-emptive assertions is Section 1408(a)(4)(A)(i) which specifically provides:
(4)(A) The term "disposable retired pay" means the total monthly retired pay to which a member is entitled less amounts which--
(i) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay;10 U.S.C.A. § 1408(a)(4)(A)(i). Father testified that his actual gross pay in December 2019 was $5355.
Compare section 1408 with the Employee Retirement Income Security Act ("ERISA") with its express preemptive language. See 29 U.S.C. § 1144 (2000) Other laws (a) Supersedure; effective date.
Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975.
The trial court determined that, based on Father's monthly gross income, Father's child support should be reduced to $526.61 per month and applied the reduction retroactively to January 1, 2016. While the court indicated it would "be calculating child support based on what is permitted by law," without the requisite findings, the record is insufficient to support the trial court's determination that Father overpaid his child support and its award to Father of all relief he requested. We conclude the trial court abused its discretion to the extent it relied upon 10 U.S.C.A. § 1408(a)(4)(A)(i) and ignored the family code guidelines to calculate child support. We further conclude that the trial court erred in failing to distinguish disposable retired pay from net resources, failing to make 154.130 findings to support its departure from standard guidelines, and in failing to address the propriety of modification of Father's child support obligations under the provisions of the Texas Family Code. See Worford, 801 S.W.2d at 109; In re K.M.B., 606 S.W.3d at 896-97. Because the aggregate effect of these errors resulted in all of the errors about which Mother complains, we sustain Mother's first, second, third, fourth, fifth, and sixth issues.
We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant Dilia Lulieth Sogamoso recover her costs of this appeal from appellee Kenneth Leo Buholtz.
Judgment entered.