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In re Marriage of Cone

Court of Appeals of Texas, Tenth District

August 14, 2019

IN THE MATTER OF THE MARRIAGE OF MELISSA MARIE CONE AND JOSHUA JOSEPH CONE AND IN THE INTEREST OF A.J.C., A CHILD,

          From the 335th District Court Burleson County, Texas Trial Court No. 27, 125

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          MEMORANDUM OPINION

          REX D. DAVIS JUSTICE.

         In four issues, Appellant Joshua Joseph Cone challenges the trial court's order regarding the amount he was ordered to pay in child support and the failure to properly credit him in the division of the marital estate. We will affirm.

         Background

         This is the second appeal in this divorce proceeding. In Case Number 10-14-00179-CV, Joshua appealed the trial court's ruling that Joshua could not testify if he elected to plead the Fifth Amendment regarding criminal charges pending against him. We affirmed that part of the trial court's final decree that granted a divorce, but reversed the decree in part as it related to all other issues, including child custody and child support, as well as the division of the marital estate.

         Joshua and Melissa were married in December 2010 in Washington State. They have one child, A.J.C., who was born in 2011. The parties separated in July 2012, and both filed for divorce in September 2012. In the final decree of divorce, Melissa was appointed sole managing conservator of A.J.C., and Joshua was appointed possessory conservator. The divorce decree limited Joshua to supervised visitation with A.J.C. as a result of his history of family violence. Joshua's visitations with A.J.C. were required to be supervised by Safe Harbour in Bryan, Texas. In the final divorce decree, the trial court also found that A.J.C. required "substantial care and personal supervision because of a mental or physical disability," as A.J.C. had been diagnosed with non-verbal autism. Joshua's child support payment was set at $1, 434.02 per month.

         The trial court made the following findings and conclusions regarding the child support order:

1. The amount of child support ordered by the Court deviates from the percentage guidelines.
2. The net resources of Joshua Joseph Cone per month are $5, 736.06.
3. The net resources of Melissa Marie Cone per month are $0.
4. The percentage applied to Joshua Joseph Cone's net resources for child support is 25% percent.

         The divorce decree further provides that Joshua is responsible for retroactive child support in the amount of $15, 385.51 from the period between January 2015 and November 2016.

         Joshua was awarded, in part, as his sole and separate property: a 2005 Cadillac Escalade, a 2005 Harley Davidson Sportster, a Bowflex, and a .357 Ruger handgun. Melissa was awarded, in part, as her sole and separate property: A.J.C.'s car seat and stroller, all of A.J.C.'s property, and $910.50 for a 2012 tax refund and a firearm sold by Joshua. The divorce decree notes: "Costs of Court awarded to Joshua Joseph Cone for the appeal have been offset by the division of the marital property above."

         After the decree was entered, Joshua filed a motion to modify, correct, or reform the judgment raising the issues he has raised in this appeal. The motion was denied by the trial court. At Joshua's request, the trial court made the following pertinent findings of fact:

[8.] The Court found and considered the following when deviating from the standard guidelines on support: Testimony of Joshua Joseph Cone's net resource[s] including pay stubs provided and Joshua Joseph Cone's testimony that he receives $1, 500.00 to $1, 600.00 per month in VA benefits for a net resource per month of $5, 736.06; The net resources of Melissa Marie Cone are $0 per month; the percentage applied to Joshua Joseph Cone's net resources is 25% in which the Court considered the special need of the child.
[10.] When considering the retroactive child support in this case, the Court considered the following: In previous support agreements prior to the Final Decree, Joshua Joseph Cone's VA benefits were never considered, disclosed or provided and testimony showed Joshua Joseph Cone received VA benefits in the amount of $1, 500.00 to $1, 600.00 per month since the beginning of this matter. Joshua Joseph Cone's testimony also showed that he was employed for periods while this matter has been ongoing. Thus, at a minimum, Joshua Joseph Cone's support should have been the minimum wage presumption plus approximately an additional $325.00 to $350.00 per month based on the amount received for the VA benefits. There was no testimony that Joshua Joseph Cone had not paid child support at the minimum wage figure, so calculating the increase of the amount he should have paid and the calculation from his current employment through the date of trial was more than Petitioner's requested retroactive child support amount.[1] Therefore, retroactive child support judgment was set at $15, 385.51.
[11.] When considering the division of the community estate, the Court considered the following: The community property that was already in each parties [sic] possession; All debt and liabilities that each of the parties have incurred from and after July 21, 2012; The property nature of the .357 Ruger handgun.

         The trial court's conclusions of law found that the property division was "just and right, having due regard for the rights of each party and the child of the marriage, irrespective of the characterization of any item of property as either community or separate." The trial court further noted that Joshua should pay child support in the amount of $1, 434.02 and medical support in the amount of $50.00 per month beginning on December 1, 2016. Joshua was additionally ordered to pay $15, 385.51 as retroactive child support in the amount of $50.00 per month until the arrearage is paid in full.

         After Joshua's appeal, he requested that we transfer the appellate record from his first appeal into the record of this appeal, which we granted.

         Issues

Joshua raises the following issues:
(1) The trial court erred in deviating from the child support guidelines based on special needs of the child which did not include any evidence of needs in excess of the support guidelines.
(2) The trial court's decree fails to comply with section 154.132 of the Family Code.
(3) The evidence is insufficient to support the retroactive support awarded.
(4) The trial court erred in failing to award Joshua costs on appeal in accordance with the judgment and ...

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