In Re KNC

276 S.W.3d 624, 2008 WL 5235698
CourtCourt of Appeals of Texas
DecidedJanuary 15, 2009
Docket05-07-01715-CV
StatusPublished

This text of 276 S.W.3d 624 (In Re KNC) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re KNC, 276 S.W.3d 624, 2008 WL 5235698 (Tex. Ct. App. 2009).

Opinion

276 S.W.3d 624 (2008)

In the Interest of K.N.C. and G.R.C., Children.

No. 05-07-01715-CV.

Court of Appeals of Texas, Dallas.

December 17, 2008.
Rehearing Overruled January 15, 2009.

*625 Richard L. Turner, Attorney At Law, Mesquite, TX, for Appellant.

Dennis Michael Saumier, Garland, TX, for Appellee.

Before Justices WRIGHT, LANGMIERS, and MAZZANT.

OPINION

Opinion by Justice WRIGHT.

George Chapman, Father, appeals from a final decree of divorce. In three issues, Father contends the trial court abused its discretion by: (1) ordering appellant to pay child support when the children receive social security benefits because of his disability; (2) ordering possession terms that are so vague as to be unenforceable by contempt; and (3) ordering a division of property whereby Mother received one-hundred percent of the community estate. We sustain Father's first issue, his second issue, in part, overrule his third issue, and modify the trial court's judgment as set forth below. We affirm the trial court's judgment as modified.

Background

Mother and Father were married in 1990. Two children were born during the marriage. Mother filed for divorce in 2006. During the marriage, the parties *626 lived in a house that Father had purchased prior to the marriage. Mother worked full-time. Father worked full-time until he was seriously injured in a car accident in 1996. He was disabled as a result of that accident. At the time of divorce, he was still receiving disability benefits and the two children also receive social security benefits because of their Father's disability. Father admitted to drug use in the past but denied that he was using drugs at the time of trial.

Following a trial, the trial court appointed Mother and Father as joint managing conservators, ordered Father to pay child support, set supervised visitation for Father, and divided the community estate. Father timely filed this appeal.

Standard of Review

The same standard of review applies to all of Father's issues. We review a trial court's judgment on child support, visitation, and division of the community estate for an abuse of discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Garner v. Garner, 200 S.W.3d 303, 306 (Tex.App.-Dallas 2006, no pet.) (child support order reviewed for abuse of discretion); Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex.App.-Dallas 2004, no pet.) (visitation order reviewed for abuse of discretion); Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981) (property division reviewed for abuse of discretion). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. LaFrensen v. LaFrensen, 106 S.W.3d 876, 877 (Tex. App.-Dallas 2003, no pet.); In re P.J.H., 25 S.W.3d 402, 405 (Tex.App.-Fort Worth 2000, no pet.).

Child Support

In his first issue, Father contends the trial court abused its discretion by ordering him to pay $230.00 a month in child support. Specifically, Father asserts he should not be required to pay child support because each child receives $322.00 a month from the Social Security Administration due to Father's disability. We agree.

Section 154.132 of the family code provides as follows:

In applying the child support guidelines for an obligor who has a disability and who is required to pay support for a child who receives benefits as a result of the obligor's disability, the court shall apply the guidelines by determining the amount of child support that would be ordered under the child support guidelines and subtracting from that total the amount of benefits or the value of the benefits paid to or for the child as a result of the obligor's disability.

TEX. FAM.CODE ANN. § 154.132 (Vernon 2002). Pursuant to the guidelines, Father should pay twenty-five percent of his net monthly resources. TEX. FAM.CODE ANN. § 154.125(b) (Vernon Supp.2008). The trial court found that Father's net monthly income was $1,230.00. Twenty-five percent of that amount is $307.50. Each child receives $322.00 a month in social security benefits due to Father's disability.

The monthly payment each child receives from the Social Security Administration exceeds the amount of child support Father would be required to pay under the child support guidelines. The trial court, however, ordered Father to pay an additional $230.00 a month in child support. In its findings of fact, the trial court explained as follows: "The *627 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 [Father] is intentionally unemployed or underemployed and his actual income is significantly less than he could earn."

If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor. TEX. FAM.CODE ANN. § 154.066 (Vernon 2002). In order to find a parent intentionally unemployed or underemployed, the evidence must show that the parent reduced his income for the purpose of decreasing his child support payments. In re P.J.H., 25 S.W.3d at 405-06. The requisite intent may be inferred from such circumstances as the parent's education, economic adversities, business reversals, business background, and earning potential. In re Davis, 30 S.W.3d 609, 617 (Tex.App.-Texarkana 2000, no pet.); In re P.J.H., 25 S.W.3d at 406. Once the obligor has offered proof of his current wages, the obligee bears the burden of demonstrating that the obligor is intentionally underemployed. Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex.App.-Corpus Christi 2002, no pet.); DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.).

There is no evidence that Father became unemployed in order to avoid paying child support payments. The undisputed evidence is that Father became unemployed as a result of a disabling injury resulting from a serious car wreck. Mother did not dispute the severity of the injuries Father suffered in the car accident.

Prior to the car accident, Father worked full-time in the masonry business. There is no evidence as to what he earned at that job. Father testified that he applied for a job two years ago with the City of Mesquite.

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Related

In the Interest of Davis
30 S.W.3d 609 (Court of Appeals of Texas, 2000)
Garner v. Garner
200 S.W.3d 303 (Court of Appeals of Texas, 2006)
Zorilla v. Wahid
83 S.W.3d 247 (Court of Appeals of Texas, 2002)
DuBois v. DuBois
956 S.W.2d 607 (Court of Appeals of Texas, 1997)
LaFrensen v. LaFrensen
106 S.W.3d 876 (Court of Appeals of Texas, 2003)
Worford v. Stamper
801 S.W.2d 108 (Texas Supreme Court, 1991)
Vannerson v. Vannerson
857 S.W.2d 659 (Court of Appeals of Texas, 1993)
Niskar v. Niskar
136 S.W.3d 749 (Court of Appeals of Texas, 2004)
Jones v. Jones
890 S.W.2d 471 (Court of Appeals of Texas, 1994)
Downer v. Aquamarine Operators, Inc.
701 S.W.2d 238 (Texas Supreme Court, 1985)
Murff v. Murff
615 S.W.2d 696 (Texas Supreme Court, 1981)
In the Interest of K.L.H.
25 S.W.3d 402 (Court of Appeals of Texas, 2000)
In the Interest of K.N.C.
276 S.W.3d 624 (Court of Appeals of Texas, 2008)

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Bluebook (online)
276 S.W.3d 624, 2008 WL 5235698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-knc-texapp-2009.