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In re A.R.W.

Court of Appeals of Texas, Fifth District, Dallas

August 20, 2019

IN THE INTEREST OF A.R.W., A CHILD

          On Appeal from the 417th Judicial District Court Collin County, Texas Trial Court Cause No. 417-52158-2016

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III

          MEMORANDUM OPINION

          BILL WHITEHILL, JUSTICE.

         This is an appeal from a child-support modification order. Mother and Father are the divorced parents of one child, Daughter. By court order, Father had primary custody of Daughter, Mother had expanded standard possession of Daughter, and Father had to pay Mother monthly child support of $1, 360. Father then filed a motion to modify seeking an order requiring Mother to pay him child support under the statutory guidelines. After a bench trial, the trial court found a material and substantial change in Mother's circumstances, but it gave Father only partial relief by reducing his monthly child support obligation to $700. Father appeals.

         The pivotal question is whether the trial court acted arbitrarily, unreasonably, and without regard to guiding rules and principles by deciding that requiring Father to pay Mother monthly child support of $700 was in Daughter's best interest. We conclude that the child-support guidelines and the evidence support the trial court's decision, so it was not an abuse of discretion. Accordingly, we affirm.

         I. Background

         A. The Original Divorce Decree

         Father and Mother married in 2000, and Daughter was born in 2005. Father and Mother divorced in 2013. Although the divorce decree is not in the appellate record, Father's brief asserts that neither party paid child support under that decree. We therefore accept that statement as true. See Tex. R. App. P. 38.1(g).

         B. The First Modification Order

         In October 2015, the trial court (the 367th District Court of Denton County) rendered a new final order based on Mother's petition to modify and Father's counterpetition.[1] This order (i) appointed Father and Mother as Daughter's joint managing conservators, (ii) gave Father the right to designate Daughter's primary residence, (iii) gave Mother possession per an expanded standard possession order, and (iv) required Father to pay Mother monthly child support of about $1, 360.

         The order recited that the court was departing from the statutory child-support guidelines and stated that "after considering the factors set forth in section 154.123 of the Texas Family Code it is in the child's best interest to have an adequate amount of resources available in each home to support a child." The court calculated Father's obligation by subtracting the guideline amount that Mother would owe as an obligor from the guideline amount that Father would owe as an obligor.

         C. The Present Modification Suit

         In April 2016, Father filed the present modification suit, which was then transferred from Denton County to Collin County.

         In May 2016, Mother remarried.

         Mother later filed a counter-petition to modify in which she sought the exclusive right to designate Daughter's primary residence.

         In Father's last amended motion, he (i) alleged that Mother was intentionally underemployed, (ii) asked the court to order child support in strict compliance with the Family Code's guidelines, and (iii) argued that strict compliance would result in Mother's paying child support to Father.

         In May 2017, the trial court conducted a one-day bench trial. At the trial's end, the judge said she would find that Mother's circumstances had materially changed for the better. At the judge's request, the parties filed supplemental briefs on the child-support issue.

         Two months later, the trial judge signed a memorandum order that ordered Father to pay child support of $700 per month. Father requested findings of fact.

         The trial judge later signed findings in support of her memorandum order. She found that it would be unjust and inappropriate to apply the Family Code § 154.125 guidelines. She also found that (i) Father's net monthly resources were $8, 827.65, (ii) Mother's monthly net resources were $4, 550, and (iii) each parent should pay child support based on 20% of the first $8, 550 of that parent's net resources. Then she offset the awards, reducing Father's guideline obligation ($1, 710) by Mother's guideline obligation ($910) and by an additional $100 to reflect Father's duty to provide Daughter's health insurance. The judge hand-wrote the following reasons for deviating from § 154.125:

Providing adequate resources for the child @ both residences; the child support guidelines amount is being reduced in accordance with Mom's resources increasing since the entry of the last order in Denton County and are therefore, offset, but Court allows by this Order an acknowledgement of the nature of [Mother's] community college employment and recent employment of Mom's evidence at trial [sic].

         A few months later the trial judge signed the final modification order. The order did the following:

• repeated the court's previous findings;
• ordered Father to pay child support of $700 per month, again calculated by taking Father's guideline support amount ($1, 710) and subtracting both Mother's guideline support amount ($910) and $100 per month because Father paid for Daughter's health insurance;
• maintained both parents as joint managing conservators and maintained Father's existing right to designate Daughter's primary residence; and
• maintained Mother's existing right to possession consistent with an expanded standard possession order, except for a minor change to the parents' right of first refusal if a parent had to be away from Daughter for more than two consecutive nights during a possession period.

         Father timely appealed.

         II. Issues Presented

         Although Father's brief lists four issues presented, the argument section has three distinct sections. We treat his brief as raising three issues corresponding to those sections, and we paraphrase those issues as follows:

1. Did the trial court abuse its discretion by rendering an order that ignores the Family Code and the child's best interest?
2. Did the trial court abuse its discretion by creating a new "adequate resources" rule that had no legal basis and risks harmful and inequitable consequences?
3. Did the trial court err by ordering Father to pay Mother child support when Mother did not plead for such relief?

         III. Analysis

         A. ...


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