Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 417th Judicial District Court Collin County,
Texas Trial Court Cause No. 417-52158-2016
Justices Whitehill, Partida-Kipness, and Pedersen, III
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.
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.
The Original Divorce Decree
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).
The First Modification Order
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. 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.
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.
The Present Modification Suit
April 2016, Father filed the present modification suit, which
was then transferred from Denton County to Collin County.
2016, Mother remarried.
later filed a counter-petition to modify in which she sought
the exclusive right to designate Daughter's primary
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
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.
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.
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].
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'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
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?