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In re A.M.

Court of Appeals of Texas, Fourth District, San Antonio

April 12, 2017

IN THE INTEREST OF A.M., a Child

         From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-05876 Honorable Renee Yanta, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Marialyn Barnard, Justice Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

          Sandee Bryan Marion, Chief Justice

         Candace Gillette filed the underlying lawsuit against Adam McKenzie to adjudicate the parentage of A.M. Adam McKenzie filed a counterclaim for appointment as a managing conservator with the exclusive right to determine A.M.'s primary residence. McKenzie appeals the trial court's order, contending the trial court abused its discretion by: (1) granting Gillette the right to claim the dependency exemption for A.M. every year for income tax purposes; (2) failing to designate the geographic area within which Gillette was required to maintain A.M.'s primary residence; (3) ordering McKenzie to pay 100% of all travel costs associated with A.M.'s travel for the purpose of McKenzie exercising his periods of possession; (4) ordering McKenzie to pay retroactive child support and using the term "child support arrearages" instead of "retroactive child support" in its order; (5) providing for extended standard possession as opposed to equal possession when A.M. is enrolled in a state sponsored pre-k or kindergarten.[1] We modify the trial court's order in part and affirm the order as modified.

         Background

         Gillette and McKenzie were involved in a relationship while both were living in Georgia. Gillette moved to Texas while she was pregnant with A.M., who was born on February 5, 2014. Gillette filed the underlying petition to adjudicate parentage on April 9, 2015, and McKenzie filed a cross-claim.

         After a bench trial, the trial court appointed the parents joint managing conservators and ordered Gillette had the exclusive right to designate A.M.'s primary residence. With regard to possession, the trial court ordered alternating monthly possession until A.M. is enrolled in a state sponsored pre-k or kindergarten. Because McKenzie was ordered to pay all travel expenses for A.M. to travel to Georgia during the periods of his possession, the trial court ordered McKenzie would not pay any child support until A.M. is enrolled in a state sponsored pre-k or kindergarten. Once A.M. is enrolled in a state sponsored pre-k or kindergarten, the trial court ordered McKenzie will have possession under an extended standard possession order and will pay Gillette $340.00 per month in child support which is reduced from the child support guidelines because McKenzie will still be required to pay travel expenses.

         Based on the child support guidelines, Gillette's attorney argued to the trial court McKenzie owed about $9, 000 in child support retroactive to the date of A.M.'s birth.[2] During the hearing, however, evidence was presented regarding expenses McKenzie paid in support of A.M. prior to the entry of temporary orders, including payments made for day care and for various other necessities. After additional discussion, the trial court verbally pronounced that McKenzie owed $5, 060 in retroactive child support. In its findings of fact, the trial court similarly found McKenzie owed Gillette $5, 060 in retroactive child support. In its order, however, the trial court granted Gillette "a cumulative judgment for child support arrearages" in the amount of $5, 060. McKenzie appeals challenging various provisions in the trial court's order.

         Standard of Review

         "In family law cases, issues such as conservatorship, visitation, or child support are evaluated against an abuse of discretion standard." In re T.K.D-H., 439 S.W.3d 473, 481 (Tex. App.-San Antonio 2014, no pet.). "When an appellant challenges the legal and factual sufficiency of the evidence in cases where the proper standard is abuse of discretion, we engage in a two-prong analysis: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion." Id. "A trial court does not abuse its discretion if it bases its decision on conflicting evidence, and … some evidence supports its decision." In re A.S.G., 345 S.W.3d 443, 449 (Tex. App.-San Antonio 2011, no pet.).

         Dependency Exemption

         Although not discussed at the hearing, the trial court's order states Gillette "shall have the dependency exemption for the child every year for income tax purposes." In his first issue, McKenzie contends the trial court erred in awarding the exemption to Gillette because a parent's entitlement to the exemption is governed by federal law.

         In Ruiz v. Ruiz, this court addressed a similar complaint by a father with regard to a portion of a divorce decree that allowed the mother to claim all six children as dependents for federal income tax purposes. 668 S.W.2d 866, 867 (Tex. App.-San Antonio 1984, no writ). In addressing the issue, this court held:

The question of income tax exemptions is clearly an area which has been preempted by the federal government and must be decided according to applicable federal statutes, rules and regulations. State ...

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