In the Interest of E.M.N., a Child v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 29, 2024
• Docket: 13-23-00068-CV
• Status: Published

Opinion

NUMBER 13-23-00068-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF E.M.N., A CHILD

ON APPEAL FROM THE 444TH DISTRICT COURT OF CAMERON COUNTY, TEXAS

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Tijerina and Peña Memorandum Opinion by Justice Tijerina

Pro se appellant Father1 appeals the trial court’s order in a suit for modification of

child support brought by the Office of the Attorney General (OAG). By five issues, Father

argues: (1) the trial court misinterpreted the law regarding social security disability

benefits; (2) the trial court failed to recognize that social security benefits belonging to a

1 We refer to the parties and their children by pseudonyms. See TEX. FAM. CODE ANN. § 109.002(d)

(“On the motion of the parties or on the court’s own motion, the appellate court in its opinion [in a parental termination case] may identify the parties by fictitious names or by their initials only.”); TEX. R. APP. P. 9.8 cmt. (“The rule does not limit an appellate court's authority to disguise parties’ identities in appropriate circumstances in other cases.”). child may only be received by an appointed representative payee; (3) the trial court

incorrectly determined that § 154.132 of the family code does not apply to lump-sum

disability payments; (4) the OAG failed to meet its burden; and (5) the trial court failed to

review evidence at trial regarding the OAG’s receipt of social security benefits on behalf

of the child. We reverse and remand.

I. BACKGROUND

In October 2011, Father began paying Mother monthly child support for E.M.N.,

who was born in 2009. When Father and Mother reconciled, Father requested a

modification of support. On July 19, 2017, the trial court held a hearing in a suit for

modification of support and granted Father child support possession credits in the amount

of $6,800 and medical possession credits in the amount of $1,583 toward “all unpaid child

support and any balance owed on previously confirmed arrearages.” The trial court

confirmed that Father did not owe child support arrearages, found that “the parties have

reconciled and are living together,” and ordered “child support and medical support be

modified to $0.” The OAG filed a notice of termination of child support on December 7,

2017, stating it was “no longer providing any child support services to [Mother]. All child

support payments should continue to be paid as currently ordered to [Mother].”

On April 25, 2020, Mother received an award letter from the Social Security

Administration (SSA) informing her that her child E.M.N. was entitled to derivative social

security benefits based on Father’s disability. E.M.N. received a check in the amount of

$56,240 in social security benefits as backpay for Father’s disability from December 2019

2 through March 2023. Additionally, SSA informed Mother that E.M.N. would thereafter

receive monthly social security benefits in the amount of $701 due to Father’s disability.

On January 3, 2022, the OAG filed a “Notice of Attorney General as Necessary

Party and Change of Payee,” claiming that the OAG is assigned Mother’s rights. Following

a hearing on the OAG’s motion, on August 4, 2022, the trial court entered an order finding

that E.M.N. “receives a monthly social security payment of $750 as a result of [Father’s]

disability”; finding that Father had over $4,500 in monthly net resources; and ordering

Father to pay monthly child support in the amount of $165 and monthly “cash medical

support, as additional child support” in the amount of $200.

Father requested a trial de novo, asserting the trial court erred in ordering him to

pay monthly cash medical support and additional child support in violation of the Texas

Family Code § 154.132. According to Father, § 154.132 required the trial court to offset

Father’s future child support obligations by crediting any social security back pay as a

result of Father’s disabilities. See TEX. FAM. CODE ANN. § 154.132 (addressing periodic

disability payments).

The trial court held a hearing on September 13, 2022. At the hearing, Father sought

credit in the amount of $56,240 to be applied towards his future child support obligation—

comprising the $200 monthly cash medical support and $165 monthly child support.

Father clarified that he and Mother were still together and were together when the $56,240

lump sum was paid to them. Father informed the trial court that it was required to follow

this Court’s holding in In re R.D.E. where this Court applied an obligor’s social security

3 disability credit prospectively. See In re R.D.E., 627 S.W.3d 798, 800 (Tex. App.—Corpus

Christi–Edinburg 2021, pet. denied).

The OAG explained that the trial court already gave Father a credit for the monthly

social security benefits E.M.N. receives in the amount of $701, but because Father’s child

support obligation is greater than E.M.N.’s monthly social security benefits of $701, Father

should pay the difference in child support in the amount of $200 for monthly cash medical

support and $165 for monthly child support. The OAG argued that it “seem[s]

inappropriate to apply [the lump sum] to the future now . . . when they got it when they

were together.” The OAG argued that it would be “double dipping” because Father and

Mother “used it and spent it together.” Alternatively, the OAG argued that the lump sum

may only be applied as credit to arrearages owed, and because Father did not owe

arrearages at the time the money was disbursed, the lump sum could not be applied

prospectively. Thus, the parties disputed how § 154.132 applied.

The trial court reiterated that, while it understood Father’s argument and his

request for a future credit, in this case, the lump sum had “already been utilized” and

depleted by Father and Mother, and “now [Father] want[s] credit for it for this other period

of time when it comes to child support” when “both of you-all were involved with that.” The

trial court denied Father’s request for a trial de novo and explained that Mother and Father

“were together” and had used and spent the lump sum together, and the trial court could

not “follow the logic” in allowing Father to use the lump sum as a child support credit

prospectively. Father requested findings of fact and conclusions of law, which the trial

4 court did not file. Father also filed a motion for new trial. The trial court denied the motion.

This appeal followed.

II. DISCUSSION

By his third issue, Father argues that the trial court failed to apply his lump-sum to

his future child support obligations in violation of § 154.132 of the family code and contrary

to our holding in In re R.D.E. See id. Because this issue is dispositive, we address it first.

A. Standard of Review & Applicable Law

“Trial courts have broad discretion in setting child support payments and modifying

those payments.” Id.; see Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011) (“A trial court has

discretion to set child support within the parameters provided by the Texas Family

Code.”). “We review a trial court’s child-support order and confirmation of an arrearage

amount for an abuse of discretion.” In re R.D.E., 627 S.W.3d at 800. “A trial court abuses

its discretion when it rules without regard to guiding rules or principles.” Id.

“[S]ocial security disability payments should be taken into account when computing

a monthly child support obligation.” Id. at 801; see TEX. FAM. CODE ANN. § 154.062(b)(5)

(defining an obligor’s net resources to include “social security” and “disability” benefits);

see also In re Rich, 993 S.W.2d 272, 274 (Tex. App.—San Antonio 1999, no pet.)

(providing that social security payments are a substitute for a disabled parent’s earnings).

“An order to pay child support is for the benefit of the child, and if the child support is paid

through the receipt of social security benefits on account of a parent, then the purpose of

the support order is accomplished.” In re R.D.E., 627 S.W.3d at 800 (citing In re Rich,

5 993 S.W.2d at 275). Section 154.132 of the family code addresses periodic disability

payments, stating that the trial 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.” 2 TEX. FAM. CODE ANN. § 154.132(a). Section

157.009 states:

In addition to any other credit or offset available to an obligor under this title, if a child for whom the obligor owes child support receives a lump-sum payment as a result of the obligor’s disability and that payment is made to the obligee as the representative payee of the child, the obligor is entitled to a credit. The credit under this section is equal to the amount of the lump- sum payment and shall be applied only to any child support arrearage and interest owed by the obligor on behalf of that child at the time the payment is made.

Id. § 157.009.

B. Analysis

The facts in In re R.D.E. are analogous to the facts here. In In re R.D.E., the

children received a lump-sum disability payment as a result of the obligor’s disability. 627

S.W.3d at 801. The trial court properly applied part of the lump-sum disability payment to

satisfy the arrearages the obligor owed in accordance with § 154.153. Id. The “dispute

2 On September 1, 2023, subsequent to this suit, the legislature amended § 154.132 by adding

subsection (b), which states that a lump-sum payment must be credited in accordance with § 157.009. See Act of May 23, 2023, 88th Leg., ch. 151 (S.B. 869), § 5, eff. Sept. 1, 2023 (codified at TEX. FAM. CODE ANN. § 154.132(b)). Section 157.009 was similarly amended to prohibit the application of a lump-sum credit to a child support obligation that has not yet accrued. See Act of May 23, 2023, 88th Leg., ch. 151 (S.B. 869), § 7, eff. Sept. 1, 2023 (codified at TEX. FAM. CODE ANN. § 157.009(b)). Because this suit was filed prior to the amendments taking effect, we apply the version that was in effect when this action commenced. See id. (“A lump-sum payment received before that date is governed by the law in effect on the date the payment was received, and the former law is continued in effect for that purpose.”).

6 concern[ed] what to do with the remaining . . . lump-sum disability benefits received” on

behalf of the children. Id. The OAG argued that the trial court could not grant an obligor a

future pay offset against his prospective child support. Id. Specifically, the OAG argued

that the obligor was not “entitled to a credit toward his future child support obligations

because the family code did not provide for that.” Id.

We noted that the OAG did not provide us with case law “addressing whether a

lump-sum disability payment may be applied as a credit to future monthly child support

obligations.” Id. at 802. Nonetheless, we stated that § 154.132 “does not explicitly or

implicitly limit the credit solely to monthly disability payments received on behalf of an

obligor’s child; rather, it clearly states it applies to all ‘benefits paid to or for the child as a

result of the obligor’s disability.’” Id. (quoting TEX. FAM. CODE ANN. § 154.132). Therefore,

we determined that the trial court had not abused its discretion by applying the lump-sum

disability payment as a credit to the father’s future monthly child support obligations. Id.

We reasoned that the family code “specifically provide[d] for the consideration of social

security disability payments when calculating a parent’s child support obligation, in

modifying child support orders, and in confirming arrearages of child support.” See id.

In this case, the trial court found that Father’s gross monthly net resources were

$4,773.23, and the percentage applied to Father’s net resources for child support was

3.61%. This percentage was computed by crediting the monthly social security payment

E.M.N. receives in the amount of $7503 to the applicable percentage guidelines as set

3 We note that the evidence provides that E.M.N. receives monthly installments in the amount of

$701—not $750. However, Father does not challenge this purported error on appeal.

7 forth in § 154.125 of the family code. See TEX. FAM. CODE ANN. § 154.125 (“Application

of Guidelines to Net Resources”). Because Father owed an amount greater than what

E.M.N. received in monthly social security disability benefits, the trial court charged Father

the difference in the child support amount in accordance with § 154.132. The order did

not credit Father’s future child support obligations with the lump-sum E.M.N. received,

which Father argues was erroneous as per our holding in In re R.D.E. See 627 S.W.3d

at 803.

We agree with Father that the trial court should have applied Father’s lump-sum

disability credit to offset his prospective child support obligations. See id. While we

acknowledge that the family code now expressly prohibits crediting any lump-sum

disability payments to offset a child support obligation that has not yet accrued, that

version of the statute is not applicable to this case; instead, we must apply the law that

was in effect at the time this case was pending. See San Jacinto Title Servs. of Corpus

Christi, LLC v. Kingsley Properties, LP, 452 S.W.3d 343, 350 (Tex. App.—Corpus Christi–

Edinburg 2013, pet. denied) (providing that an amendment to a statute “applies

prospectively unless it is expressly made retroactive”). Accordingly, we conclude the trial

court abused its discretion when it refused to follow this court’s reasoning in In re R.D.E.

We sustain Father’s third issue.4

4 Having sustained Father’s third issue, we need not address his remaining issues as they are not

dispositive. See TEX. R. APP. P. 47.1.

8 III. CONCLUSION

We reverse the judgment of the trial court and remand the cause for proceedings

consistent with our memorandum opinion.

JAIME TIJERINA Justice

Delivered and filed on the 29th day of August, 2024.