Opinion
05-20-00383-CV
09-07-2022
IN THE INTEREST OF C.S.D., A CHILD
On Appeal from the 470th Judicial District Court Collin County, Texas Trial Court Cause No. 470-50971-2019
Before Chief Justice Burns, Justice Schenck, and Justice Osborne
MEMORANDUM OPINION
LESLIE OSBORNE, JUSTICE
The Office of the Attorney General of Texas ("OAG") filed this suit affecting the parent-child relationship seeking child support and related orders from the trial court. Mother and Father answered and filed cross-petitions. After an evidentiary hearing, the trial court signed an "Order Adjudicating Parentage and to Establish Parent-Child Relationship." Father and Mother each appeal, challenging the trial court's rulings regarding child support, consent to medical treatment for C.S.D., geographical restrictions, the possession schedule, and attorney's fees. We affirm the trial court's order.
Background
Mother and Father have never been married. They ceased living together before C.S.D.'s birth in November 2018. Mother and C.S.D. reside in Texas, and Father resides in Utah.
The OAG initiated this suit in February 2019 requesting appointment of conservators for C.S.D. and orders for current and retroactive child support. Mother and Father each filed cross petitions to adjudicate parentage. The case proceeded to trial, where the OAG sought child support orders and Mother and Father requested relief regarding conservatorship, child support, medical expenses, travel restrictions, and other matters. Mother and Father testified and offered evidence to support their requested relief.
In its letter ruling at the close of trial, the trial court ordered Father to pay "guideline child support of $1,840 per month" and entered a standard possession order for parents who reside over 100 miles apart. The court granted Mother the exclusive right to designate C.S.D.'s primary residence, but restricted C.S.D.'s residence to Texas or Utah. The court also ruled that "other rights" under family code § 153.132 "will be independent with advance written notice to the other parent." The court then signed an "Order Adjudicating Parentage and to Establish Parent-Child Relationship" on December 16, 2019, incorporating its rulings. Mother and Father each appeal the trial court's order.
Family code section 153.132 enumerates the "rights and duties of [a] parent appointed sole managing conservator." Among other rights, a sole managing conservator has the right to consent to medical care, the right to receive child support, and the right to make decisions concerning the child's education. Tex. Fam. Code Ann. § 153.132.
A. Father's Issue
In his sole issue, Father contends the trial court erred in determining his net resources for the purposes of calculating his child support obligation.
1. Applicable Law and Standard of Review
The Texas Family Code requires a trial court to assess child support liability by calculating the obligor's monthly "net resources" and applying statutory guidelines to that amount. See Tex. Fam. Code §§ 154.061(a), 154.062, 154.125; Interest of K.M.B., 606 S.W.3d 889, 894 (Tex. App.-Dallas 2020, no pet.). The amount of child support assessed under the guidelines is presumed reasonable, in the best interest of the child, and appropriate. Interest of K.M.B., 606 S.W.3d at 894 (citing Tex. Fam. Code § 154.122).
A trial court has discretion to set child support within the parameters provided by the family code. Rodriguez v. Rodriguez, 860 S.W.2d 414, 415 (Tex. 1993); see also Tex. Fam. Code §§ 154.121-.123. A court's order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). We review the evidence in the light most favorable to the order and indulge every legal presumption in favor of the trial court's ruling. Interest of K.M.B., 606 S.W.3d at 894. If some probative and substantive evidence supports the trial court's order, there is no abuse of discretion. Id. The trial court is the sole judge of the credibility of the witnesses and the evidence. Reisler v. Reisler, 439 S.W.3d 615, 620 (Tex. App.- Dallas 2014, no pet.) (trial court is sole judge of witnesses' credibility in family law bench trial).
In child support decisions, the "paramount guiding principle" of the trial court should always be the best interest of the child. See Rodriguez, 860 S.W.2d at 417 n.3. The child support guidelines in chapter 154 of the family code are intended to guide the court in determining an equitable amount of child support. Tex. Fam. Code § 154.121. The trial court is to calculate net resources for the purpose of determining child support liability under chapter 154 of the family code. Id. § 154.062.
2. Discussion
Father argues that "[t]he only credible evidence at trial was that Father's income had dropped from $12,000/month to $2,000/month, due to no fault of his own." At trial, Father testified that during Mother's pregnancy with C.S.D., he worked as a contract employee-a leasing agent for a large piece of commercial real estate-for 628 Park, a company owned by his parents. He was paid $12,000 per month "in a 1099 employee capacity." He contends that this employment ended in October 2018-one month before C.S.D.'s birth-due to a downturn in the economy. Father testified that he was then unemployed until March 2019, when he began working for another of his parents' companies, Midwest Sperm Bank, "as a W-2 employee earning $2,000 per month." During this same time, Father owned a company called Photage, but he contends it "has not ever made a profit."
Father testified that his living expenses, including child support and health insurance for C.S.D., exceed his income. As a result, he relies on loans from his parents "to make ends meet." At trial, six promissory notes were admitted into evidence reflecting that Father borrowed over $75,000 from his parents in 2019. Father contends that the funds he receives from his parents are loans, not gifts, and that his parents expect repayment. Father also offered evidence that in December 2017, when he received a lump sum payment for the prior year's employment, he paid back approximately $76,000 to his parents for previous loans they had provided.
Father argues that loan proceeds are not "resources" under family code section 154.062(b) that can be considered in determining his child support obligation. He contends he established that the payments from his parents were loans requiring repayment. He cites Schepps Grocery Co. v. Burroughs, 635 S.W.2d 606, 610 (Tex. App.-Houston [14th Dist.] 1982, no writ), to support his argument that "[f]or there to be a loan, there must be an absolute duty to repay the monies." He relies on the promissory notes that were admitted into evidence as well as bank statements showing deposits and direct transfers to him from his parents' bank account.
Mother and the OAG contend that the trial court acted within its discretion by considering the fund transfers from Father's parents to Father as either gifts or income. The record reflects that both before and after C.S.D.'s birth, Father worked for his parents' business entities. Until October 2018, Father received gross monthly income of $12,000 from "real estate leasing" for his work at 628 Park. But a month before C.S.D. was born, this income ceased.
Mother offered evidence, however, that Father was still showing the 628 Park property just prior to trial. Further, Father admitted at trial that he had "met with people" the previous week hoping to rent the property, had continued to display a "For Leasing" sign containing his cell phone number at the property, and would receive a commission if the property were leased.
Summarizing the evidence, the OAG argues that Father's bank statements show that in 2018, $46,300 was deposited into Father's bank account from his parents' personal checking account, and between January and June 2019 (the last date for which statements were produced in discovery), there were direct deposits of approximately $94,000 from Father's parents' accounts into Father's account. Mother also testified that Father's bank statements reveal in excess of $63,000 in additional deposits that originated from unknown sources.
Mother testified that the six promissory notes Father relies on do not cover all of the amounts Father has received from his parents' accounts. Further, the notes contain some inaccuracies and are signed only by Father. The March 1, 2019 promissory note admitted into evidence as Exhibit CP-4, for example, recites that "for value received," Father promises to pay his parents $20,000 "in exchange for a loan." Although the note is dated March 1, Father's bank statements introduced into evidence as Exhibit CP-11 do not show online transfers from his parents until March 4, 8, and 13, totaling $20,000. Further, Exhibit CP-4 recites that the post-maturity interest rate is "ten percent (5%) [sic] per annum." This discrepancy in the interest rate is repeated in each of the promissory notes admitted into evidence at trial. Further, the note admitted into evidence as Exhibit CP-8 shows a date of "June 31" [sic], 2019. And the $12,000 payable on the note dated May 1, 2019 (admitted into evidence as Exhibit CP-6) is $8,000 less than the amount transferred into Father's account from his parents' account in that month. In total, the amounts due under the notes admitted into evidence at trial is $75,605. Mother also offered evidence that deposits to Father's accounts actually increased after C.S.D.'s birth despite his purported loss of employment.
Further, Mother offered evidence that Father "continued to spend" after October 2018, when Father contends he lost his job. Mother testified that she has experience in financial analysis, and she prepared a review of Father's spending that was admitted into evidence. She testified that in her review, she "did not see any sort of differentiation in his-what he was spending when he said he was employed versus what he was spending when he said he didn't make money." Father conceded that his "living expenses haven't really changed" after he purportedly lost $10,000 per month in employment income because "I take out loans."
The OAG, in turn, relies on the facial discrepancies in the promissory notes we have discussed, and also argues that Father did not establish his "absolute duty" to repay the notes. See Schepps Grocery Co., 635 S.W.2d at 610. The OAG contends Father had no definite plan for repaying his parents. The OAG cites Father's testimony that he hoped to pay his parents back with proceeds from two companies he has invested in, despite his admission that neither company is "producing any cash." Further, the OAG argues that Father offered no testimony from his parents about their intent in the transactions.
The OAG additionally argues that the evidence supports a finding that the funds transferred from Father's parents were "income"-that is, money received from "employment, business, investments, royalties, gifts, and the like," as defined by the supreme court-rather than loans. See Loya v. Loya, 526 S.W.3d 448, 452 (Tex. 2017) (internal quotation omitted). Pointing to the evidence that Father stopped receiving his salary from 628 Park one month before C.S.D.'s birth, and the evidence that Father nevertheless continued to work for 628 Park until at least a week before trial, the OAG argues that "the timing . . . is suspect and certainly raises questions about whether Father chose to be intentionally unemployed and/or underemployed to avoid child support." See Tex. Fam. Code § 154.066 (court may apply support guidelines of obligor's earning potential if actual income is "significantly less" due to intentional unemployment or underemployment); Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011) (parent qualified to obtain gainful employment cannot evade child support obligation by voluntarily remaining unemployed or underemployed). The OAG also notes that Father's bank records do not reflect consistent monthly payments of the $2,000 per month Father alleges he earned working part-time at his father's company Midwest Sperm Bank beginning in March 2019.
On this record, we conclude the trial court acted within its discretion by ordering Father to pay the statutory maximum amount of child support for C.S.D. See Worford, 801 S.W.2d at 109. The trial court could have concluded that the amounts Father receives from his parents are not loans, but are either gifts or "wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses" included in determining Father's net resources under family code section 154.062(b). We decide Father's sole issue against him. See Interest of K.M.B., 606 S.W.3d at 894.
Consequently, we need not address Mother's and the OAG's alternative argument that "loans" are "resources" for purposes of family code § 154.062. See Tex. R. App. P. 47.4.
B. Mother's Issues
In three issues, Mother contends (1) the trial court's order of standard possession was error for a child under three years of age, (2) the evidence is legally and factually insufficient to support the geographic restriction on C.S.D.'s residence and the award of independent rights to each parent regarding certain medical treatment and educational decisions for C.S.D., and (3) the trial court abused its discretion by failing to award her attorney's fees.
1. Standard of Review
"The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." Tex. Fam. Code § 153.002. It is well-settled that the trial court has broad discretion in determining the best interests of a child in family law matters. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The trial court is typically in the best position to observe the demeanor and personalities of the witnesses and to understand influences on the family dynamic that cannot be discerned by mere reference to the record. In re N.A.S., 100 S.W.3d 670, 673 (Tex. App.-Dallas 2003, no pet.). Accordingly, we review a trial court's best interest determinations for an abuse of discretion. Gillespie, 644 S.W.2d at 451. A trial court abuses its discretion in this context when it acts arbitrarily, unreasonably, or without reference to any guiding rules and principles. Worford, 801 S.W.2d at 109. The trial court is the sole judge of the credibility of the witnesses and the evidence. Reisler, 439 S.W.3d at 620.
2. Standard possession order
Citing family code section 153.251(d), Mother argues in her first issue that the trial court erred by ordering a standard possession schedule because C.S.D. is younger than three years of age. That section provides that "[t]he standard possession order is designed to apply to a child three years of age or older." Tex. Fam. Code § 153.251(d). We conclude that this issue is moot because C.S.D. is now more than three years of age. See Ngo v. Ngo, 133 S.W.3d 688, 691 (Tex. App.- Corpus Christi-Edinburg 2003, no pet.) (when child involved in divided custody issue reached age of majority, issue was moot); In Interest of M.L., No. 02-15-00258-CV, 2016 WL 3655190, at *5 (Tex. App.-Fort Worth July 7, 2016, no pet.) (mem. op.) (same). We decide this issue against Mother.
3. Geographical restriction and independent rights to decide medical treatment and educational decisions
In her second issue, Mother argues that the evidence does not support (1) a geographical restriction on C.S.D.'s residence or (2) allowing each party to make independent decisions regarding medical, dental, and surgical treatment involving invasive procedures, psychiatric and psychological treatment, and education. We review these rulings in turn.
a. Geographical restriction
The trial court ordered that Mother has "the exclusive right to designate the primary residence of the child within the states of Texas and Utah." Mother argues the evidence does not support this restriction, because Father travels frequently around the United States and has lived in both Utah and Illinois. Mother also argues that she moved to Texas to be close to family for C.S.D.'s birth, but she had previously lived and worked in New York and Washington, D.C. Mother requested instead that C.S.D.'s residence be restricted to her living within thirty miles of a major airport. Mother contends that this restriction "would serve the best interest of the child by allowing Mother more opportunity for work and would give Father the same access to the child for an appropriate possession schedule."
If a trial court appoints both parties as joint managing conservators, it must designate the conservator who has the exclusive right to determine the primary residence of the child and must either establish a geographic area within which the conservator shall maintain the child's primary residence or specify that there are no geographic restrictions. Tex. Fam. Code § 153.134(b)(1)(A), (B); Matter of Marriage of Christensen, 570 S.W.3d 933, 938 (Tex. App.-Texarkana 2019, no pet.). The best interest of the child is the primary consideration of the court in determining this issue, and the trial court has wide latitude in making its determination. Christensen, 570 S.W.3d at 938. The determination is "intensely fact-driven." Id.
In Interest of E.D., the court noted that the Texas Supreme Court has not articulated factors for a trial court to consider in initially setting a geographic restriction, but explained that the court has "nevertheless provided some guiding principles." Interest of E.D., No. 02-20-00208-CV, 2022 WL 60781, at *15 (Tex. App.-Fort Worth Jan. 6, 2022, no pet.) (mem. op.) (citing Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002)). Those principles include assuring that children will have frequent and continuing contact with parents who have shown the ability to act in the child's best interest, who can provide a safe, stable and nonviolent environment for the child, and encouraging parents to share in the rights and duties of raising their child. Id. at *15-16 (citing Lenz, 79 S.W.3d at 14, regarding review of relocation ruling).
The evidence showed that Mother and Father were living together in Utah when Mother became pregnant with C.S.D. Mother moved to Texas before C.S.D.'s birth for family support. On cross-examination at trial, Mother acknowledged that if she moved to the east coast, Father's travel time to visit C.S.D. would be much longer than the travel time to Texas, and "travel is expensive." Father testified that he lives in Utah, and explained:
Q. Would you be okay with there not being a geographical restriction for your daughter?
A. No.
Q. Why not?
A. You know, I live in Utah, which is the western part of the country. Traveling from the west towards the east is very difficult. It's-there's longer trips. That's more expensive. You know, down here in Dallas, we're approximately a two-hour flight from Utah. It's very easy for me to get here.
Although Mother argues that her proposed restriction-living "within 30 miles of the nearest major airport"-would allow her more opportunity for work, Mother testified that she had obtained a position in Dallas that would not require her to move. Further, family code section 153.134(b)(1)(A) provides that the court shall "establish, until modified by further order, a geographic area" for the child's primary residence, expressly contemplating that the court may consider future modification. Tex. Fam. Code Ann. § 153.134(b)(1)(A). On this record, we cannot say the trial court abused its discretion by ruling that Mother must maintain C.S.D.'s primary residence in Texas or Utah. See Id. § 153.134(b)(1)(A); Christensen, 570 S.W.3d at 938. We decide this portion of Mother's second issue against her.
b. Independent decisions on medical treatment and education
In rendering an order appointing joint managing conservators, the trial court is required to specify the rights and duties of each parent regarding the child's "physical care, support, and education." Tex. Fam. Code § 153.134(b)(2). "The trial court retains broad discretion in crafting the rights and duties of each conservator so as to effectuate the best interest of the child." In re M.A.M., 346 S.W.3d 10, 18 (Tex. App.-Dallas 2011, pet. denied). Here, the trial court ordered that each parent had "the independent right, with advance written notice to the other parent conservator, to consent to medical, dental, and surgical treatment involving invasive procedures . . . and to psychiatric and psychological treatment of the child." The trial court also ordered that each parent had "the independent right, with advance written notice to the other parent conservator, to make decisions concerning the child's education."
The trial court heard testimony from both parents regarding C.S.D.'s physical and medical care. Mother relies on evidence that (1) the parties do not communicate well, (2) Father had few visits with C.S.D. prior to trial, (3) "Father had tested positive for cocaine and ecstasy only six months prior to trial with only one negative test three months later," (4) Father encouraged Mother to move to Texas so her family could help, (5) when Mother was pregnant, Father told Mother he planned on not seeing the child often, (6) Father offered money for Mother to have an abortion, and (6) C.S.D. had some initial medical problems that required additional attention.
There was little or no evidence about C.S.D.'s education, likely due to C.S.D.'s young age. Mother testified that she was "one hundred percent" concerned about C.S.D.'s education and wanted to ensure that C.S.D. had a good education wherever they resided. But no other specific evidence was offered on the subject by either party.
The trial court also heard evidence, however, that (1) Father described his relationship with Mother as "extremely toxic" and explained that he did not insist on visits before trial because he "didn't want to expose [C.S.D.] to that type of behavior," (2) Mother had not permitted Father to have any unsupervised visitation with C.S.D. before trial, (3) Father wants to be more involved in C.S.D.'s life and knows how to feed and dress C.S.D. and change her diapers, (4) Father is concerned that Mother "doesn't make the best decisions when it comes to invasive medical procedures," citing Mother's decision to have C.S.D.'s ears pierced "at a very young age" without consulting him; (5) Father has "access to about five or six doctors in [his] immediate family" to call on for medical advice, including his father, his twin sister, two uncles, and both of his first cousins; and (6) he arranged for "the head of . . . high-risk obstetrics and gynecology at University of Utah" to treat Mother when Mother had concerns about her pregnancy, and took Mother to appointments there, showing Mother's trust in him when she was "at medical risk."
We conclude there was legally and factually sufficient evidence to support the trial court's decisions regarding C.S.D.'s physical care, support, and education, and that the trial court did not abuse its discretion in its orders on these matters. See Gillespie, 644 S.W.2d at 451. We decide this portion of Mother's second issue against her.
3. Attorney's Fees
The trial court ordered that "[e]ach party shall be responsible for their own attorney's fees, expenses, and costs incurred as a result of legal representation in this case." In her third issue, Mother argues the trial court abused its discretion by failing to award her attorney's fees.
An award of attorney's fees in most family law matters is within the sound discretion of the trial court. Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996). The family code authorizes the award of reasonable fees in suits affecting the parent-child relationship. Tex. Fam. Code § 106.002(a). But neither party in a family law proceeding is entitled to an award as a matter of right. McCord v. Watts, 777 S.W.2d 809, 813 (Tex. App.-Austin 1989, no writ). The trial court is not obliged to award attorney's fees but instead may order each party to pay his or her own. Id.
Mother argues that "[b]ecause the trial court abused its discretion regarding the possession schedule, drug testing, geographic restriction, and rights and duties in Mother's Cross Issues 1 and 2, this Court should remand the attorney's fees to be reconsidered by the trial court as well because they were sufficiently proved up." Although we have concluded that the trial court did not abuse its discretion on these issues, a fee award was not necessarily precluded. See In Interest of A.B.R., No. 04- 17-00220-CV, 2018 WL 3998684, at *9 (Tex. App.-San Antonio Aug. 22, 2018, no pet.) (mem. op.) ("Section 106.002 is not a 'prevailing party' statute that requires a party to prevail on her claims before being awarded attorney's fees because it is often difficult in family law cases to determine which party has prevailed."). On this record, however, we cannot say the trial court abused its discretion by ordering that the parties should bear their own attorney's fees, expenses, and costs. We decide Mother's third issue against her.
Conclusion
The trial court's December 16, 2019 "Order Adjudicating Parentage and to Establish Parent-Child Relationship" is affirmed.
JUDGMENT
In accordance with this Court's opinion of this date, the trial court's December 16, 2019 "Order Adjudicating Parentage and to Establish Parent-Child Relationship" is AFFIRMED.
It is ORDERED that appellee The Office of the Attorney General of Texas recover its costs of this appeal from appellants Daniel Madanes and Chelsea Duran.