in the Interest of L.J.F.

• Court: Court of Appeals of Texas
• Decided: July 12, 2018
• Docket: 09-17-00151-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________

NO. 09-17-00151-CV ____________________

IN THE INTEREST OF L.J.F. __________________________________________________________________

On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. F-226,912 __________________________________________________________________

MEMORANDUM OPINION

In two issues on appeal, appellant D.F., the father of L.J.F., complains that the

trial court abused its discretion in awarding retroactive child support and by allowing

J.J., the mother of L.J.F., to determine the child’s primary residence without any

geographic restriction. We affirm the trial court’s order.

BACKGROUND

In June 2016, the Office of the Attorney General (“OAG”) filed a petition for

confirmation of the non-agreed child support review order for the benefit of L.J.F.,

and the OAG attached an acknowledgement of paternity executed by D.F. The

record shows that the trial court conducted a negotiation conference and that D.F.

1 was notified but failed to appear. The trial court issued a child support review order

acknowledging D.F. as L.J.F.’s father, finding that D.F. has a duty to support L.J.F.,

and ordering D.F. to pay $504 in child support each month beginning July 2016. The

trial court appointed J.J. and D.F. joint managing conservators of L.J.F. and

designated J.J. as the conservator with the exclusive right to designate the primary

residence of L.J.F., and the trial court ordered J.J. to maintain L.J.F.’s primary

residence in Jefferson County or any contiguous county. The trial court further found

that D.F. owed retroactive child support in the amount of $6408 for the period of

May 2015 to June 2016, and ordered D.F. to pay $85 per month beginning in July

2016 until the child support arrearage is paid in full.

In August 2016, D.F. requested a hearing to contest the confirmation of the

non-agreed child support review order. D.F. complained about the terms of the order,

including the retroactive child support award. In September 2016, the trial court held

a hearing and entered a temporary child support review order, in which it ordered

D.F. to pay $186 in monthly child support beginning October 2016, and found that

D.F. owed $1699.26 in retroactive child support for the period of May 2016 to

September 2016. J.J. appealed.

In May 2017, the trial court conducted a final hearing to determine the amount

of child support and retroactive child support that D.F. was required to pay. The

2 record shows that D.F. testified that he has a bachelor’s degree in social work and

that he was making an annual salary of $43,000 while working as an investigator for

Child Protective Services (“CPS”), but his job with CPS ended in August of 2016.

According to D.F., CPS gave him the choice to either resign or be terminated due to

his work performance. D.F. explained that he was making approximately $37,000

per year when LJ.F. was born on April 15, 2015. D.F. testified that at his last job, he

worked as a general contractor doing maintenance work for approximately twelve

weeks, and he earned $13.50 per hour and worked forty hours per week.

D.F. testified that he had received $12,000 in unemployment benefits since

the summer of 2016, and that he was looking for a job. According to D.F., he never

intended to stay on unemployment, and his parents are helping him out financially

until he gets a job. D.F. explained that he is trying to get into the petrochemical

industry, applies for jobs almost daily, and has registered with several temporary

agencies. D.F. testified that he has also applied for jobs in Houston and that he may

be relocating.

D.F. testified that he pays court-ordered child support for his other child. D.F.

further testified that he pays $775 for rent, $350 for his car, $70 for his cell phone,

and approximately $70 per week for groceries and gasoline. Concerning retroactive

child support for L.J.F., D.F. testified that he has never lived with J.J. and that they

3 have been separated since May 2016, but D.F. claimed that he provided support to

J.J. since L.J.F. was born. According to D.F., he gave J.J. $200 per month for daycare

expenses from October 2015 until May 2016. D.F. provided the trial court with

receipts showing that he had bought items for L.J.F., and although the trial court

sustained J.J.’s counsel’s objections to the admission of the receipts, the trial court

allowed D.F. to explain what expenses he paid for L.J.F.’s care. The record showed

that D.F. paid $186 per month in child support from October 2016 to May 2017 as

ordered in the trial court’s temporary order.

J.J. testified that she never lived with D.F., and that during the time period

when D.F. failed to pay child support, D.F. gave her $200 per month for a three-

month period to cover daycare expenses. J.J. further testified that D.F. paid some of

L.J.F.’s medical bills and had bought some clothes and milk. J.J. testified that she

wanted the trial court to set retroactive child support based on the salary D.F. earned

while working for CPS, which was between $37,000 and $43,000 per year. J.J.

explained that based on D.F.’s income during the time period when D.F. failed to

pay child support, J.J. believed that D.F. should pay approximately $7400 in

retroactive child support.

The trial court entered an order that designated J.J. as the conservator with the

exclusive right to designate the primary residence of L.J.F. and ordered that J.J. may

4 determine L.J.F.’s primary residence without any geographic restriction. The trial

court found that based on D.F.’s work history, D.F.’s gross monthly resources are

$3000 and his net monthly resources are $2489, and the trial court ordered D.F. to

pay $436 monthly in child support beginning June 2017.

Concerning the amount of retroactive child support to award, the trial court

calculated that D.F. worked for CPS for seventeen months and that support was $525

per month during that time period. The trial court calculated three months of support

at $350 based on D.F.’s construction job, and also calculated an additional five

months at $160, which was based on minimum wage. The trial court determined that

D.F. had made $1488 in payments and gave D.F. a $2000 credit for the retroactive

child support. Based on the trial court’s calculations, the trial court found that

retroactive child support should be ordered for the period of April 15, 2015, to May

3, 2017, in the amount of $7467. The trial court ordered D.F. to pay $7467 in

retroactive child support in the amount of $100 per month. D.F. appealed.

ANALYSIS

In issue one, D.F. argues that the trial court abused its discretion by awarding

retroactive child support in the amount of $7467. We review a trial court’s decision

awarding retroactive child support under an abuse of discretion standard. Ayala v.

Ayala, 387 S.W.3d 721, 726-27 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

5 Under this standard, legal and factual sufficiency of the evidence are not independent

grounds of error, but are relevant factors in assessing whether the trial court abused

its discretion. In the Interest of R.T.K., 324 S.W.3d 896, 899-900 (Tex. App.—

Houston [14th Dist.] 2010, pet. denied). The trial court has broad discretion in setting

retroactive child support, and we will not overturn a trial court’s decision absent a

clear abuse of discretion. Cohen v. Sims, 830 S.W.2d 285, 288 (Tex. App.—Houston

[14th Dist.] 1992, writ denied). If there is some evidence of a substantive and

probative character to support the trial court’s award of retroactive child support, the

trial court did not abuse its discretion. Newberry v. Bohn-Newberry, 146 S.W.3d

233, 235 (Tex. App.—Houston [14th Dist.] 2004, no pet.). When, as in this case, the

trial court does not file findings of fact and conclusions of law, we imply that the

trial court made all findings necessary to support its judgment and will uphold those

findings if supported by sufficient evidence. In the Interest of A.B., 368 S.W.3d 850,

855 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

Upon a final adjudication of parentage, the trial court may order a parent to

pay retroactive child support. Tex. Fam. Code Ann. § 160.636(g) (West Supp. 2017).

In ordering retroactive child support, the trial court must apply the child support

guidelines together with any relevant factors. Tex. Fam. Code Ann. §§ 154.009(a),

(b), 154.123, 154.131 (West 2014). The trial court must consider the net resources

6 of the obligor during the relevant time period, and it must also consider whether (1)

the obligor had knowledge of his paternity, (2) the order of retroactive child support

will impose an undue financial hardship on the obligor, and (3) whether the obligor

has provided actual support or other necessaries before the filing of the action. Id. §

154.131(b). Section 154.131(c) provides that

it is presumed that a court order limiting the amount of retroactive child support to an amount that does not exceed the total amount of child support that would have been due for the four years preceding the date the petition seeking support was filed is reasonable and in the best interest of the child.

Id. § 154.131(c). This presumption can be rebutted by evidence that the obligor knew

or should have known that he was the father of the child for whom support is sought

and the obligor sought to avoid the establishment of a support obligation to the child.

Id. § 154.131(d).

The Family Code instructs the trial court to calculate the obligor’s net

resources for the purposes of determining child support liability. Id. § 154.062(a)

(West Supp. 2017). Courts may calculate the obligor’s net resources based on

imprecise information. Ayala, 387 S.W.3d at 727. There must be some evidence of

a substantive and probative character of net resources for the court to discharge its

duty. Newberry, 146 S.W.3d at 236. Here, the record shows that the trial court

considered D.F.’s retroactive child support based on minimum wage and on the

7 different jobs D.F. worked during the relevant time period. The trial court also gave

D.F. a $2000 credit for actual support that D.F. claimed he had provided to J.J. since

L.J.F.’s birth. The evidence supports the trial court’s award of $7467 in retroactive

child support for the period between April 15, 2015 and May 3, 2017. See Ayala,

387 S.W.3d 727-28; Newberry, 146 S.W.3d at 235-36. We conclude that the trial

court did not abuse its discretion in awarding retroactive child support in the amount

of $7467. We overrule issue one.

In issue two, D.F. complains that the trial court abused its discretion by

ordering that J.J. may determine L.J.F.’s primary residence without any geographic

restriction. When a trial court renders an order appointing joint managing

conservators, the trial court must designate which conservator has the exclusive right

to determine the child’s primary residence, and establish a geographic area within

which the conservator shall maintain the child’s primary residence, or specify that

the conservator may determine the child’s primary residence without regard to any

geographic location. Tex. Fam. Code Ann. § 153.134(b)(1) (West 2014). The trial

court has broad discretion in determining whether a conservator will have the

exclusive right to establish the primary residence of a child without regard to

geographic location. See In the Interest of K.L.W., 301 S.W.3d 423, 428 (Tex.

App.—Dallas 2009, no pet.).

8 The child’s best interest shall always be the trial court’s primary consideration

in determining issues of conservatorship, and possession of and access to the child.

Tex. Fam. Code Ann. § 153.002 (West 2014). A trial court may consider a parent’s

need to secure employment or pursue educational or career opportunities in

exercising its discretion regarding geographical restrictions. See Lenz v. Lenz, 79

S.W.3d 10, 16 (Tex. 2002). D.F. testified that he may be relocating to Houston in

order to secure employment. The trial court could reasonably have considered the

likelihood that D.F. would be moving from Jefferson County in its deliberation

regarding geographical restrictions. We conclude that the trial court did not abuse its

discretion when it waived the geographical restriction. See Lenz, 79 S.W.3d at 16;

In the Interest of K.L.W., 301 S.W.3d at 428. We overrule issue two. Having

overruled both of D.F.’s issues, we affirm the trial court’s order.

AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on March 29, 2018 Opinion Delivered July 12, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.