TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00535-CV
Toan Ly, Appellant
v.
Hong Nguyen, Appellee
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-20-003420, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
Toan Ly (Husband) appeals from the decree in the divorce from Hong Nguyen
(Wife) and suit affecting the parent-child relationship (SAPCR). Husband contends that the trial
court erred by failing to issue any findings of fact, conclusions of law, or ruling on the record
after the trial; to allocate the parties’ debt; or to consider that the marital property is in a
floodplain. Husband also contends that the trial court erred by deviating from the child-support
guidelines. We will reverse the part of the decree setting the amount of Husband’s child-support
obligation and remand that issue for further proceedings. All other challenged parts of the decree
are affirmed.
BACKGROUND
Though the evidence in the parties’ divorce and SAPCR was wider-ranging, we
will focus on the background for the central issues on appeal: debt, income, and property values. The parties married in 2011, had a child in 2013, and purchased a house on about 3.6 acres for
about $295,000 in 2014. They disagreed on the source of some of the funds for that purchase.
The parties agreed that they obtained loans from Husband’s brother ($60,000) and Home Sweet
Home, LLC, a company owned by Husband’s aunt ($130,000). Husband testified that he paid
the remainder of the purchase price with loans from a friend ($38,000), his mother ($23,000),
and their family doctor ($14,000); Husband introduced a bank statement from October 2014
showing various deposits, but the statement did not show the source of those funds. Husband
said he repaid some of the personal loans after selling a separate property house for $161,000 in
2015; Wife rejected his assertion. Husband testified that they currently had a $50,000 mortgage.
He also listed a $33,000 Small Business Administration loan among his debts on his proposed
child-support worksheet. He said that he paid the mortgage with no help from Wife.
In 2016-17, Husband built a car-repair shop on the property. He estimated that it
cost $200,000 to build and that he had added about $20,000 in improvements. He said that his
sister wired him a loan of $215,000 in February and April of 2017; there are wire transfers to
their bank account of about $50,000 in February 2017 and about $165,000 in April 2017, but the
statements do not name the sender. Wife testified that her father transferred $215,000 to
husband’s bank account in 2017.
Wife testified that Husband never told her of any purchase loans aside from the
loans from Home Sweet Home and his brother; she said that the couple paid the home purchase
balance with their own cash. Wife testified that they eventually obtained a mortgage to pay off
the Home Sweet Home loan and that nobody else contributed to the purchase of the shop or
repayment of the debt. She testified that, “since the day that we purchase[d] the house, we did
not owe anybody money. We did not borrow anybody’s money from anybody.” She testified
2 that the couple got a loan from Austin Telco to build the shop and that they still owe about
$30,000 to $40,000 on that loan.
In April 2019, Husband wrote a $120,000 check to Wife with the memo line
stating “loan repay.” The check was not cashed. Husband testified that he did not remember his
father-in-law giving them money for the shop and that he did not intend to repay any such loan
when he wrote the check. Husband testified that his check was to help Wife repay loans she
obtained to run a chicken farm in 2017 and 2018. Wife testified that when Husband wrote the
$120,000 check he told her he was buying out her share of their home and property and that he
wanted her to leave; she said she did not deposit the check because she knew the account did not
have sufficient funds. She said that Husband told her he was angry when he wrote the check.
She said she did not know why he wrote “loan repay” in the memo line.
The parties did not provide values for other properties divided in the decree.
Husband testified that a recreational vehicle on the property was a gift from his mother to his
younger brother, but Wife rejected that story and testified that the RV was in her name. No title
or other proof of ownership was offered or admitted by either party.
The parties’ experts provided widely differing values for the real property.
Husband’s expert, Steven Adams, set the value at $770,000. He set that value in May 2021, then
revisited the property in September 2022 and estimated that the value was the same; he testified
that property values had increased about 10% from May 2021 to May 2022, then decreased about
5% by September 2022. Wife’s expert, Susan Briggs, valued the property at $1,040,000 in
November 2021. She asserted that Adams undervalued the property because he did not consider
the full added value of the enclosed garage and deducted from the house’s value both for being
in the floodplain and for having the basement flood. Briggs touted the property’s commercial-
3 development potential due to its location. She also testified that values increased from May 2021
by 25%.
During the years 2018 through 2021, Husband reported to the Internal Revenue
Service gross receipts for the car-repair business of at least $150,000 every year reduced by
expenses and depreciation to profit/income of less than $22,000 every year. Wife reported
making $48,000 for work at a chiropractor’s office.
The court named the parties joint managing conservators of their child, imposed a
modified expanded standard possession order, and gave Wife the exclusive right to designate the
child’s primary residence in Williamson or Travis counties. The court ordered Husband to pay
$1,840 in monthly child support. The court awarded Husband the property containing the house
and shop but required him to compensate Wife for her share of the property by paying her
$498,042.07—which the court said was half the appraised value of the marital residence minus
half the mortgage owed. No party timely requested findings of fact and conclusions of law, and
the trial court did not make any.
STANDARD OF REVIEW
We apply an abuse of discretion standard of review to Husband’s issues
challenging the trial court’s decisions regarding property division and child support. See
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Murff v. Murff, 615 S.W.2d
696, 698 (Tex. 1981). A trial court abuses its discretion if it acts without reference to any
guiding rules or principles—that is, if the act is arbitrary or unreasonable. Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007).
In a bench trial to the court in which no findings of fact or conclusions of law are
filed, we will infer all findings of fact necessary to support it. Rosemond v. Al–Lahiq,
4 331 S.W.3d 764, 766-67 (Tex. 2011). When (as here) a reporter’s record is filed, these implied
findings are not conclusive, and an appellant may challenge the legal and factual sufficiency of
the evidence to support them. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83
(Tex. 1992).
Under an abuse-of-discretion standard, legal- and factual-sufficiency challenges
to the evidence are not independent grounds of error, but are relevant factors in assessing
whether the trial court abused its discretion. Iliff v. Iliff, 339 S.W.3d 126, 134 (Tex. App.—
Austin 2009), aff’d, 339 S.W.3d 74 (Tex. 2011). In determining whether a trial court abused its
discretion because the evidence is insufficient to support the decision, we look first to whether
the court had sufficient evidence upon which to exercise its discretion and then to whether the
court erred in his application of that discretion. Id.
Evaluating whether legally sufficient evidence supports a challenged finding
requires that we examine the record for evidence and inferences that support the challenged
finding, considering evidence favorable to the finding if a reasonable factfinder could, and
disregarding evidence contrary to the finding unless a reasonable factfinder could not. City of
Keller v. Wilson, 168 S.W.3d 802, 827-28 (Tex. 2005). We will not substitute our judgment for
that of the factfinder if the evidence falls in the zone of reasonable disagreement. Id. at 822. We
can reverse for factual insufficiency only if the finding is so contrary to the great weight of the
evidence as to be clearly wrong and unjust and if the court erred harmfully when using that
finding. See Slicker v. Slicker, 464 S.W.3d 850, 857–58 (Tex. App.—Dallas 2015, no pet.)
(factual insufficiency); see also Wheeling v. Wheeling, 546 S.W.3d 216, 224 (Tex. App.—El
Paso 2017, no pet.) (harm required).
5 DISCUSSION
Husband contends that the trial court (1) erred by failing to issue any findings of
fact, conclusions of law, or ruling on the record after the trial; and abused its discretion (2) by
failing to allocate the parties’ debt; (3) by failing to consider that the marital property is in a
floodplain; and (4) by deviating from the child-support guidelines to order Husband to pay the
maximum standard child support based on insufficient evidence.
I. The trial court did not err by not filing findings of fact and conclusions of law because Husband’s request for findings and conclusions was untimely.
By his first issue, Husband contends that “the trial court failed to issue any
findings of fact, conclusions of law or any ruling on the record following a two-day trial and the
filing of post-trial motions.” He asserts that “[o]nce the parties rested their cases, . . . the trial
court announced that it would take the matter under advisement. Thereafter, there is no
indication in the Clerk’s Record that any ruling was ever issued by the judge.” He notes that an
email from court staff circulated to the parties’ trial attorneys “purportedly containing the trial
court’s decision” but contends that the email was not an enforceable and appealable ruling. He
also complains that the trial court did not make findings and conclusions and did not rule on his
request for them or on his motion for new trial.
Husband’s contention that the trial court failed to make “any ruling” on the
divorce suit, the property division, or SAPCR issues, is meritless. The court signed a Final
Decree of Divorce that dissolved the marriage, apportioned the marital estate, assigned
possession of the child, imposed child support, and made several other rulings in its 44 pages
with 19 pages of exhibits. The last substantive paragraph of the decree states:
6 IT IS ORDERED AND DECREED that all relief requested in this case and not expressly granted is denied. This is a final judgment, for which let execution and all writs and processes necessary to enforce this judgment issue. This judgment finally disposes of all claims and all parties and is appealable.
Husband’s broad argument that “there is no indication in the Clerk’s Record that any ruling was
ever issued by the judge” fails.
If Husband’s complaint concerns only the lack of response to his request for
findings and conclusions, it fails for different reasons. The trial court did not “fail” to file
findings and conclusions because Husband’s untimely request did not obligate it to do so. The
trial court signed its judgment on June 6, 2023. Requests for findings of fact and conclusions of
law must be filed no more than twenty days after the judgment is signed. Tex. R. Civ. P. 296.
The twentieth day after the judgment was signed was Monday, June 26, 2023. Husband’s
Request for Findings of Fact and Conclusions of Law was filed June 30, 2023. Because the
request was untimely, the trial court was not obligated to prepare findings and conclusions. See
Williams v. Kaufman, 275 S.W.3d 637, 642 (Tex. App.—Beaumont 2009, no pet.).
Husband’s complaint that the trial court did not expressly rule on his motion for
new trial also does not show error. Texas Rule of Civil Procedure 329b(c) provides:
In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.
Husband’s motion for new trial was overruled by operation of law on Monday, August 21, 2023.
The trial court did not err by not expressly denying Husband’s motion for new trial.
We overrule issue one.
7 II. Husband has not shown that the trial court abused its discretion in dividing the marital estate.
Husband raises two issues regarding the division of the marital estate that overlap.
By his second issue, he asserts that “[a]ssuming for the sake of argument that the email provided
from the staff attorney constitutes the trial court’s ruling, the trial court abused its discretion in
connection with the property division by failing to rule and allocate the Parties’ debt.” In his
argument, he focuses on the failure to offset the value of assets awarded to Wife with a share of
the loans from family members that enabled the asset purchase and improvement. Husband
contends by his third issue that the trial court abused its discretion by failing to consider that the
marital property is in a floodplain. We will consider what writing shows the court’s ruling,
discuss the property-valuation issue, then move to the marital-estate division issue.
A. Omission of issues from a staff attorney’s email does not show abuse of discretion by the court.
We are unable to review the merits of Husband’s complaint that the court abused
its discretion in its staff attorney’s email to the parties about the court’s decree that omitted some
issues. The email that Husband challenges is not in the clerk’s record. The burden lies with the
appellant to provide the reviewing court with an appellate record sufficient to illustrate its
entitlement to reversal. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per
curiam). He does not assert that it was improperly omitted from the clerk’s record. He attached
a printout of the email to his brief, but it is not file-stamped by a court clerk. Though Husband’s
quotation from the email is not challenged, there is no record reference as required. See Tex. R.
App. P. 38.1(g). We will review the trial court’s exercise of its discretion through its signed and
8 filed Final Decree of Divorce, not an unfiled email from its staff attorney that is not as
comprehensive as the final decree.
B. Husband has not shown that the trial court failed to consider the effect on the value of the real estate of being in a floodplain.
The parties’ experts disagreed on the value of the marital real estate, viewing the
effect of its floodplain status and its commercial potential differently and counting different
amounts of livable space in the house. The court set the value of the property at $996,084.14
with an undisclosed amount of a mortgage remaining.1 A factfinder has discretion to set the
property value at any amount between the range of values introduced into evidence. Preston
Rsrv., L.L.C. v. Compass Bank, 373 S.W.3d 652, 668 (Tex. App.—Houston [14th Dist.] 2012, no
pet.); State v. Huffstutler, 871 S.W.2d 955, 959 (Tex. App.—Austin 1994, no writ). But a
factfinder may not assess a value amount neither authorized nor supported by the evidence.
Preston, 373 S.W.3d at 668. Husband contends that the trial court’s choice of a value closer to
Wife’s expert’s valuation shows that it failed to fully consider the property’s floodplain status.
Husband’s expert real-estate appraiser, Steven Adams, valued the property at
$770,000, evenly split ($385,000) between the house and the shop. Adams testified that the
property’s value was reduced by up to 25% because about 80% of the property was in a 100-year
floodplain. There is a creek on the property with a metal bridge giving access to a small shed.
Husband produced pictures of a flood in 2015 that put six feet of water in the basement of the
house; a previous owner testified that a pipe from the basement led to the creek and enabled
flooding when the creek rose. Adams wrote his report in May 2021, then revisited the site
1 The court awarded Wife “[t]he sum of Four Hundred Ninety-Eight Thousand, Forty Two Dollars, and 07 cents ($498,042.07) which is fifty percent (50%) of the appraised value of the marital residence located [] minus one-half (1/2) of the mortgage owing to BB&T.” 9 shortly before trial in September 2022. He testified that the property was essentially unchanged
during that time except that the bridge had been displaced by floodwaters. He testified that
market prices rose 10% from May 2021 to May 2022, then fell 5% by September 2022.
Wife’s expert, Susan Briggs, valued the property at $1,040,000 in November
2021. She valued the house portion at $630,000 and the shop portion at $410,000. She asserted
that Adams undervalued the property because he did not consider the full added value of the
enclosed garage; Adams testified that the enclosure of the garage with a bathroom and closet
added $5,000 in value, while Briggs counted it as 511 extra square feet of living space adding
over $120,000 in value. She contended that Adams incorrectly deducted from the house’s value
both for being in the floodplain and for having the basement flood, which she considered
“double-dipping;” she estimated that it caused him to undervalue the property by 25%—an
amount that if removed would bring his valuation to $962,500. Briggs said that the basement is
not livable area and is essentially like a piered foundation. She conceded, however, that a
potential buyer might look at the basement as an attractive feature of the home and that the
prospect of floods would detract from the attraction to the property, reducing the number of
potential residential buyers. She noted that the property is “not always flooding” in the context
of a discussion of whether the creek added value to the property. Wife testified that they had
“fix[ed] the house completely” and that there was no more flooding. Briggs touted the
property’s mixed-use and commercial development potential due to its location between the
interstate and a toll road. She testified that neighborhood property values at the time of trial had
increased by 25% from May 2021.
The difference between the valuations is largely in the house which is the highest-
valued structure affected by flooding. There is a $25,000 gap between the experts’ valuation of
10 the shop, but that difference could be due to market forces and the date of their evaluations.
Adams testified to a $385,000 value and said that values increased by 10% over the year after his
May 2021 evaluation. Briggs set the value at $410,000 in November 2021—a 6.5% increase
over the six months between the evaluations. The house valuation difference is more significant
at $385,000 (Adams) and $630,000 (Briggs). Part of that difference is due to how the appraisers
valued the enclosure of the garage; Adams listed it as a $5,000 enhancement and Briggs set it at
over $120,000. Another difference is the discount for the floodplain issue; Adams said he
reduced value by up to 25%, while Briggs said she thought Adams deducted twice—once for the
floodplain and once for the basement’s flooding history. Their valuations were also somewhat
aged in a time of market volatility. Adams testified to a 5% net increase in values since his
evaluation, though he did not adjust his valuation. Briggs testified to a 25% increase in value
from Adams’s May 2021 valuation to the trial date, which would also increase her November
2021 valuation somewhat. If the court chose Briggs’s November 2021 valuation, it implicitly
found that the remaining mortgage amount was $43,915.86, 2 a value within the range of the
parties’ testimony of $30,000 (Wife’s testified minimum) to $50,000 (Husband’s testimony); if
its calculations included the full $50,000 remaining mortgage testified to by Husband, it set a
value of $1,046,084.14—an increase of 0.59% in a period of much larger market-value increases.
We cannot say that the trial court failed to consider the effect of the real estate
being in the floodplain. The court’s valuation, while different from Adams’s opinion, was
supported by evidence. We overrule issue three.
2 This calculation is Briggs’s valuation ($1,040,000), less the amount accorded each party ($498,042.07 * 2 = $996,084.14). 11 C. The absence of express findings of fact and conclusions of law does not prevent analysis of the division of the debts.
Husband contends that, “in light of the trial court abusing its discretion in failing
to issue any finding as to the existence or amount of marital debt to offset the overall value of the
marital estate, the property division was not right and just as between the Parties.” Husband also
contends that the trial court’s disposition of the debt is not supported by the evidence. While the
court was not obligated to make findings and conclusions about the marital debt, we will review
whether the trial court abused its discretion in dividing the debt as part of the just-and-right
division of the marital estate. See Lynch v. Lynch, 540 S.W.3d 107, 131 (Tex. App.—Houston
[1st Dist.] 2017, pet. denied) (division of marital estate includes division of debts and liabilities
incurred jointly by parties along with assets).
The absence of express findings makes Husband’s task challenging. The burden
to show that a trial court’s error caused a manifestly unjust property division is a high one and
more difficult when the record contains no findings as to the value of the estate assets. Matter of
Marriage of Rangel & Tovias-Rangel, 580 S.W.3d 675, 683 (Tex. App.—Houston [14th Dist.
2019, no pet.). To determine whether the trial court divided the community estate in a just-and-
right manner, we must have the trial court’s findings on the value of those assets. Id. at 141.
Without findings of fact, we do not know the basis for the division, the values assigned to the
community assets, or the percentage of the marital estate that each party received. Rangel,
580 S.W.3d at 683.
“One who complains of the way the trial court divided the community property
must be able to show from the evidence in the record that the overall division is so unjust and
unfair as to constitute an abuse of discretion.” Gonzales v. Gonzales, 704 S.W.3d 54, 82 (Tex.
12 App.—Austin 2024, no pet.). Because the standards for dividing a community estate involve the
exercise of sound judgment, a trial court must be accorded much discretion in its decision.
Bradshaw v. Bradshaw, 555 S.W.3d 539, 543 (Tex. 2018). We cannot merely reweigh the
evidence. Id. The trial court is authorized to “order a division of the estate of the parties in a
manner that the court deems just and right,” Tex. Fam. Code § 7.001, and has “wide discretion”
that should be disturbed only in the case of clear abuse, Murff, 615 S.W.2d at 698. “Every
reasonable presumption should be resolved in favor of the proper exercise of discretion by the
trial court in dividing the property of the parties.” Zieba v. Martin, 928 S.W.2d 782, 791 (Tex.
App.—Houston [14th Dist.] 1996, no writ).
The court awarded the car-repair business to Husband in addition to the real
property on which the home and business sit. It distributed other property—including multiple
vehicles and bank accounts—without evidence of their value or balances. Only the real property
including the marital home and the car-repair shop was given a stated value—and that is as
reduced by a mortgage of unspecified amount that husband was required to pay. 3 That reduction
effectively accorded half of the remaining mortgage debt to Wife while leaving Husband
responsible for its eventual repayment. The court also required the parties to pay debts they
incurred solely, all payments due on real and personal property apportioned to them, and their
own legal fees. The parties’ unspecified credit card-debt was apportioned by assigning specific
3 As noted above, the court awarded Wife “[t]he sum of Four Hundred Ninety-Eight Thousand, Forty Two Dollars, and 07 cents ($498,042.07) which is fifty percent (50%) of the appraised value of the marital residence located [] minus one-half (1/2) of the mortgage owing to BB&T.”
13 cards to each spouse. Husband was required to pay all loans owed to Tran4 Ly and all loans
owed to family members. The trial court did not fail to rule and allocate the parties’ debt, but did
so without stating the amounts owed.
Husband asserts that the court abused its discretion because it allocated to him all
of the $398,000 in loans used to purchase and improve marital property over the years. There is
no detail in the decree regarding the amounts of the debts accorded the parties. The amount of
the debts and Wife’s knowledge of them are disputed. The parties agreed that they took out a
$133,000 loan from Home Sweet Home and that Husband’s brother lent them $60,000 in 2014 to
purchase the property. Husband claimed $73,000 more in loans from his friends and family, but
Wife said she knew nothing of those. Both spouses claimed that relatives wired them $215,000
in 2017 (Husband’s sister and Wife’s father); the couple’s bank statements from February and
April 2017 show receipt of wire transfers of roughly $215,000, but do not name the sending
individual. Husband testified that he repaid his brother and his friend in 2015 after selling his
separate-property house for $161,000. Wife denied Husband’s claim that he used $161,000 from
the sale of his separate-property house to pay for their community property. 5 She testified that,
“since the day that we purchase[d] the house, we did not owe anybody money. We did not
borrow anybody’s money from anybody.” She testified that the couple got a loan from Austin
Telco to build the shop and that they still owe about $30,000 to $40,000 on that loan. Husband
testified that at the time of trial they had a $50,000 mortgage with a $150 minimum
monthly payment.
4 The court reporter transcribed the name of Appellant’s sister who loaned him money as Trang Ly. 5 Husband does not seek reimbursement of his separate estate on appeal for this $161,000 sale. 14 Ultimately, the record does not compel or allow us to find an abuse of discretion
on this issue. The court may have decided that neither party proved the amount of marital debt
owed. It may have determined that it was just and right to accord debts to Husband that Wife did
not know existed. It may have decided to allocate more debts to Husband than Wife because he
was awarded the business and much of the debt was business-related. See Sheshtawy
v. Sheshtawy, 150 S.W.3d 772, 780 (Tex. App—San Antonio 2004, pet. denied) (holding trial
court did not abuse discretion by ordering one spouse to pay community debts incurred by that
spouse for that spouse’s business). It may have concluded that the award of the business and the
car-repair shop and other assets balanced any imbalance in the distribution of debts. Because we
conclude that Husband has not shown from the record that the overall division is so unjust and
unfair as to constitute an abuse of discretion, we overrule issue two. See Gonzales, 704 S.W.3d
at 82.
III. The trial court abused its discretion in setting the amount of Husband’s child- support obligation.
By his fourth issue, Husband contends that the trial court abused its discretion by
deviating from the child-support guidelines to order Husband to pay the maximum standard child
support under the guidelines based on insufficient evidence. In his substantive argument, he
asserts that insufficient evidence supports the trial court’s calculation of his net resources.
The award of child support is subject to an abuse-of-discretion standard that
incorporates challenges to the sufficiency of the evidence as factors. See Worford, 801 S.W.2d
at 109; McGuire v. McGuire, 4 S.W.3d 382, 384, 387 n.2 (Tex. App.—Houston [1st Dist.] 1999,
no pet.). As Husband requests remand, he is challenging the factual sufficiency of the evidence.
See Scott Pelley P.C. v. Wynne, 578 S.W.3d 694, 701 (Tex. App.—Dallas 2019, no pet.).
15 Texas Family Code Chapter 154 sets guidelines to apply in determining an
equitable amount of child support. See Tex. Fam. Code. §§ 154.001–.309. The amount of child
support is determined in part by the net resources of the obligor. Id. § 154.062(a). “Net
resources” includes all wage and salary income, self-employment income, and all other income
actually received. Id. § 154.062(b). The amount of those net resources that can be dedicated to
child support under the guidelines is set by a percentage tied to the number of children to be
served. Id. § 154.125. Application of the guidelines is rebuttably presumed to be in the child’s
best interest. See id. § 154.122. The court can depart from the guidelines for several reasons
including age and needs of the child, possession arrangements, the debts assumed by a party, or
any other best-interest consideration. Id. § 154.123. The guidelines for child support apply to a
capped amount of the obligor’s monthly net resources. See id. § 154.125(a). At the time of trial,
that cap was $9,200. See id. § 154.125(a-1) (guideline cap set every six years); 44 Tex. Reg.
3559, 3559 (2019) (eff. Sept. 1, 2019 for six years). If the amount of child support ordered by
the court varies from the amount computed by applying the percentage guidelines, the court must
make specified findings “[w]ithout regard to Rules 296 through 299, Texas Rules of Civil
Procedure” relating to findings of fact and conclusions of law. See Tex. Fam. Code
§ 154.130(a)(3), (b); Omodele v. Adams, No. 14-01-00999-CV, 2003 WL 133602, at *5 (Tex.
App.—Houston [14th Dist.] Jan. 16, 2003, no pet.) (mem. op) (holding trial court abused
discretion by deviating from guidelines without making findings required in section 154.130
even when findings not requested).
Husband had one dependent child, so the percentage of his monthly net resources
to be allocated to child support under the guidelines was 20%. See Tex. Fam. Code
§ 154.125(b). Application of the guideline of 20% of monthly net resources to reach an award of
16 $1,840 in monthly child support requires an implicit finding that Husband had (at least) $9,200
in monthly net resources available, or $110,400 in annual net resources. 6 Alternatively, the trial
court found a lesser amount of net resources but departed upward from the guidelines in
calculating the child-support owed. Husband contends that the trial court erred by departing
from the amount of support due under the guidelines based on his monthly income of $1,833.
We will examine the evidence supporting the trial court’s implicit findings. To
award the maximum support calculable under the guidelines, the trial court must have found that
Husband’s monthly net resources met or exceeded the statutory cap of $9,200.
Husband estimated his monthly net resources based on his income-tax returns that
showed a significant reduction from his car-repair shop’s gross receipts to his reported income.
Husband contends that he had been unable to earn as much because of family difficulties, health
concerns, and the pandemic. He did not testify about any income stream other than his car-repair
business. He testified that, after his customers paid him, he had expenses like labor, parts, and
software. His four years of income-tax returns showed subtractions from gross receipts items
including advertising, contract labor, insurance, leased vehicles, utilities, cost of goods sold or
supplies, depreciation, and other expenses. Cost of goods sold or supplies alone offset more than
half of the gross receipts.7 The returns showed the following:
6 Where “x” is Husband’s monthly net resources, $1,840 is the child-support award, and the guideline is 20% or .2, solving for x: .2x = $1840, then x =$1,840/.2, and x =$9,200. 7 The title of this category shifted from cost of goods sold to supplies in 2020.
17 Year Gross receipts Profit 2018 $201,279 $21,872 2019 $150,916 $13,557 2020 $199,297 $17,254 2021 $241,470 $19,163
The average of gross receipts in these years was $198,240.50 and of profits was $17,961.50 per
year, or $1,496.79 per month. Husband requested that his obligation be based on income of
$1,833 per month. He calculated that, after allowable deductions, he had monthly net resources
of $1,619.88. Applying the guideline rate of 20%, his monthly child-support obligation would
be $323.98.
Wife asked for support based on the “wages shown on his tax returns that he
submitted to the Court of over [$]200,000.” Wife also testified that Husband had told her he had
made $80,000 to $120,000 annually when working at a dealership; she asserted “that is why he
has a lot more when he is working for himself.”8
We conclude that the trial court abused its discretion in awarding the maximum
child-support under the guidelines. If it found that Husband had less than $9,200 in monthly net
resources but departed from the guidelines without making the findings required to justify
the departure, it abused its discretion. See Tex. Fam. Code § 154.130(a)(3); Omodele,
2003 WL 133602, at *5. If it found that Husband had monthly net resources of at least $9,200, it
abused its discretion because that finding is not supported by legally or factually
sufficient evidence.
The record supports a finding that Husband’s business had gross receipts of at
least $150,000 in each year, but it does not support the idea that he had “wages” of over
8 Husband testified that he stopped working for the dealership in 2007. 18 $200,000. Husband testified and the tax returns indicated that his gross receipts for his car-repair
business were largely offset by the cost of parts, contract labor, software, depreciation, utilities,
and other expenses. There is no evidence challenging the claimed expenses. His maximum
self-reported profit or income in the four years of tax returns was $21,782. Wife’s testimony that
he reported “wages” of over $200,000 was based on and yet inconsistent with the tax returns
which showed much lower net income. Her testimony regarding his pre-2008 income is
speculative and does not account for offsets that would be incurred if he were to shut down his
on-property business in favor of resuming employment at a dealership.
The trial court’s implicit finding that Husband has net monthly resources of at
least $9,200 is so contrary to the overwhelming weight and preponderance of the evidence as to
be clearly wrong and unjust. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)
(per curiam). The insufficiency of the evidence makes the amount of the trial court’s
child-support award an abuse of discretion.
But the record does not allow us to render judgment on Husband’s net resources
and child-support obligation. The Family Code describes how to calculate net resources
available for child support, describes the information the parties must furnish, and details how to
establish self-employment income. See Tex. Fam. Code § 154.061-.068. The income-tax returns
are not conclusive on appeal because income-tax regulations are distinct from the rules in the
Family Code. See Powell v. Swanson, 893 S.W.2d 161, 163 (Tex. App.—Houston [1st Dist.]
1995, no writ). The Family Code expressly allows adjustments to self-employment income as
reported to the Internal Revenue Service: “In its discretion, the court may exclude from
self-employment income amounts allowable under federal income tax law as depreciation, tax
credits, or any other business expenses shown by the evidence to be inappropriate in making the
19 determination of income available for the purpose of calculating child support.” Tex. Fam. Code
§ 154.065(b). On the state of the record, we cannot render judgment on the amount of child
support owed.
We sustain Husband’s fourth issue and remand for a new trial on the
child-support issue.
CONCLUSION
We reverse the part of the decree setting the amount of Husband’s child-support
obligation and remand that issue for further proceedings. All other challenged parts of the decree
__________________________________________ Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Triana and Kelly
Affirmed in Part, Reversed and Remanded in Part
Filed: September 19, 2025