Opinion
No. 04-17-00105-CV
04-18-2018
IN THE INTEREST OF Q.D.S. and D.D.S., Children
MEMORANDUM OPINION
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-06768
Honorable Gloria Saldaña, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
Appellant L.M.S. ("Father") appeals from the trial court's order modifying his child support obligation. On appeal, Father raises five issues, contending: (1) the trial court erred in awarding retroactive child support; (2) the trial court erred in failing to determine net resources and disallowing legitimate business expenses; (3) the trial court erred in "imputing" to Father $5,800.00 in monthly income, which included $838.00 in monthly retirement benefits; (4) there is no evidence he was underemployed, and the trial court did not make an affirmative finding of underemployment; and (5) the trial court erred in failing to issue findings of fact and conclusions of law "when the application of child support deviated from the guidelines." We affirm the trial court's modification order.
BACKGROUND
In 2010, appellee M.B.G. ("Mother") filed a petition for divorce; Father answered. At the time the petition was filed, there were two children of the marriage, Q.D.S. and D.D.S. Mother and Father, who are both attorneys, entered into a written settlement agreement. In March 2012, the trial court rendered an "Agreed Final Decree of Divorce" based on the parties' agreement.
As to the terms of the decree, with regard to the children, the parties were named joint managing conservators. Mother was awarded the exclusive right to designate the children's primary residence, Father was awarded standard visitation, and the parties made special provisions for certain holidays. As for child support, pursuant to the parties' agreement, the trial court's decree stated Father was not obligated to pay child support and Mother was responsible for the children's health insurance. The parties approved the decree as to form and substance.
Approximately three years later, on April 23, 2015, the Office of the Texas Attorney General ("the OAG") filed a suit for modification of the child support order, seeking to modify the 2012 Agreed Final Decree of Divorce. The OAG asked the court to order Father to pay child support and provide health care coverage for Q.D.S. and D.D.S. On May 26, 2015, the trial court granted the OAG's request for modification in an order entitled "Agreed Order on Suit for Modification of Child Support Order." The trial court found Father claimed "$0.00 in net resources" and based on unemployment guidelines, ordered him to pay directly to Mother child support in the amount of $400.00 per month beginning June 1, 2015, and on the first of the month every month thereafter. The court further ordered that "any and all arrearages that may exist are zeroed out and [Father] doesn't owe any arrearages." The parties approved the decree as to form and substance.
Pursuant to the trial court's order, child support payments would continue until the earliest occurrence of one of the following events: (1) child turns eighteen or graduates from high school, whichever is later; (2) child marries; (3) child dies; or (4) child's disabilities are otherwise removed.
Approximately five months later, on October 15, 2015, the OAG filed another modification action, seeking to modify the May 26, 2015 modification order. The OAG sought to modify the current child support amount and to confirm child support arrearages. According to the OAG, Father incurred arrearages in the amount of $2,000.00, having failed to make a child support payment since the May 26, 2015 order. In response, Father filed an answer in which he: (1) challenged the OAG's involvement in the suit given that all support payments are to be made directly to Mother; and (2) denied the existence of any delinquency in child support payments, claiming he actually paid more than was due under the prior order. In December 2015, the OAG amended its suit, seeking $2,800.00 in arrearages.
In February 2016, Father filed his "Motion to Modify Parent-Child Relationship," seeking to modify the May 26, 2015 order — the same order the OAG sought to modify. Among other things, Father asked the trial court to confirm overpayment of child support and render a judgment for the overpaid amount against Mother. Thereafter, Father filed an amended motion to modify, adding a request for a reduction in child support.
Father also sought the following modifications: require the parties to communicate through Family Wizard, establishment of a loving and caring order and a child's "Ten Commandments," and provision of a neutral location for exchanging the children for visitation.
In March 2016, Mother filed her own motion to modify both the original decree of divorce and the May 26, 2015 modification order. Mother asked the trial court to order Father to reimburse her for the children's health insurance premiums, modify Father's child support obligations to comply with the support guidelines, and to modify Father's visitation. Thereafter, the parties filed several amended motions to modify that concerned visitation.
On October 11, 2016, a bench trial was held at which Father and Mother appeared with their attorneys. The OAG did not appear; however, Mother's attorney advised the OAG would be satisfied with any ruling by the trial court. Father and Mother were the only witnesses. The trial court rendered its final order on November 29, 2016. The trial court ordered as follows:
• Father's visitation to be supervised for at least six months and take place at Guardian House;The trial court also ordered the OAG to disburse to Mother any child support in its possession.
• Father and Mother are prohibited from using corporal punishment;
• Father shall have phone access to the children each night between 7:00 p.m. and 7:30 p.m. when the children are not in his possession, and Mother may not monitor the calls except under certain circumstances;
• Father to pay for both children, based on his income, $1,192.63 per month, reduced by the $616.00 per month that is paid to them from his Social Security benefits, for a total of $576.63 per month retroactive to April 1, 2015, and thereafter on the first of each month until a terminating event occurs;
• Father to provide health insurance as additional child support;
• Father and Mother each to pay fifty percent of any health expenses not covered by insurance;
• Father and Mother to attend parenting classes; and
• Father and Mother to utilize Our Family Wizard for all communications
The amount due is reduced when one child reaches a terminating event: age eighteen, graduation from high school, death, marriage, or enlistment in the armed services.
On December 13, 2016, Father filed a request for findings of fact and conclusions of law. On December 23, 2016, Mother filed a notice stating Father's request for findings and conclusions was untimely pursuant to the Texas Family Code ("the Code"). Thereafter, on December 29, 2016, Father filed a motion for new trial, to which Mother filed a response. Father also filed a second request for findings and conclusions in January 2017. The trial court did not issue findings of fact and conclusions of law and it denied the motion for new trial. Thereafter, Father filed his notice of appeal challenging the trial court's November 29, 2016 order.
ANALYSIS
As set out above, Father raises five issues on appeal challenging the trial court's modification order. Father's issues relate to the award of retroactive child support, determination of net resources, imputation of monthly income, underemployment, and the trial court's failure to issue findings of fact and conclusions of law.
Retroactive Child Support
Father first contends the trial court erred in awarding retroactive child support. He argues the trial court erred because it "lacked statutory authority to award retroactive child support" and "did not have plenary power to alter a prior child support order."
With regard to his first argument, Father relies on section 154.009 of the Texas Family Code ("the Code"). See TEX. FAM. CODE ANN. § 154.009 (West 2014). That section provides that a trial court may order a parent to pay retroactive child support if the parent has not previously been ordered to pay support and was not a party to the suit in which support was ordered. Id. § 154.009(a)(1), (2). Father contends that because he was previously ordered to pay child support in the trial court's May 26, 2015 order and was a party to that suit, the trial court did not have authority to order him to pay retroactive child support. We disagree.
Retroactive child support is available in two separate circumstances governed by two separate statutory provisions in the Code. In re T.G., No. 05-12-00460-CV, 2013 WL 3154975, at *5 (Tex. App.—Dallas June 19, 2013, no pet.) (mem. op.) (citing In re R.G.G., No. 03-04-000445-CV, 2005 WL 723664, at *2 (Tex. App.—Austin Mar. 31, 2005, no pet.) (mem. op.)). First, retroactive child support can be ordered under section 154.009 when it has not been previously ordered. Id. (citing TEX. FAM. CODE ANN. § 154.009). Second, it can be ordered under section 156.401(b). Id. (citing TEX. FAM. CODE ANN. § 156.401(b)). Contrary to Father's contention, the second circumstance applies here. Thus, we look to section 156.401(b) to determine whether the trial court had discretion to order Father to pay child support retroactive to April 1, 2015. We hold that it did.
Trial courts possess broad discretion in determining whether a prior child support order should be modified. Reagins v. Walker, 524 S.W.3d 757, 761 (Tex. App.—Houston [14th Dist.] 2017, no pet.). This includes an award of retroactive child support. In re A.B., 368 S.W.3d 850, 854 (Tex. App.—Houston [14th Dist.] 2012, no pet.). On appeal, this court will not disturb a trial court's modification determination in the absence of a clear abuse of discretion. Reagins, 524 S.W.3d at 761. A trial court abuses its discretion only when it acts without reference to any guiding rules or principles of law. Id. (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)).
Section 156.401(b) provides that a child support order may be modified "only as to obligations accruing after the earlier of: (1) the date of service of citation; or (2) an appearance in the suit to modify." TEX. FAM. CODE ANN. § 156.401(b). In the modification order that is the subject of this appeal, the trial court ordered Father to pay the modified child support retroactive to April 1, 2015. The OAG — the first party in this matter to seek modification — did not file its motion to modify until April 23, 2015. Thus, at first glance it would appear the trial court ordered retroactive child support in violation of section 156.401(b). See id. However, the record shows that on March 31, 2016, Father and Mother entered into a written agreement regarding temporary orders. The agreement states: "Any modification in child support amount is to be retroactive to April 1, 2015." The agreement further states that by their signatures, the parties acknowledge the agreement "expresses the entire understanding and concord of the parties in consent that the Court may, without further notice, enter bindings orders in accordance with this agreement." (emphasis added). The agreement was signed by Father, Mother, their attorneys, and the trial court. At the final hearing, Mother's attorney specifically referred the trial court to this agreement with regard to the date to which retroactive support should be ordered.
A trial court is not bound by an agreement for temporary orders entered into prior to the rendition of a final order. In re Tucker, 96 S.W.3d 662, 667-68 (Tex. App.—Texarkana 2003, no pet.) (holding it was not abuse of discretion for trial court to order retroactive child support contrary to parties' agreed temporary orders). Similarly, we hold that given the trial court's broad discretion, a trial court may, within its discretion, choose to abide by the parties' agreement set out in prior temporary orders. Cf. Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. Civ. App.—Dallas 1980, orig. proceeding) (holding that final decree superseded temporary order with respect to future support, but obligation for past support, as fixed by temporary order, continued unless modified by final decree). Here, given the trial court's broad discretion and the terms of the agreement signed by both parties, we cannot say — despite the language in section 156.401(b) — that the trial court clearly abused its discretion in ordering child support retroactive to April 1, 2015, the date previously agreed upon by the parties.
Next, Father argues the trial court erred in awarding retroactive child support to April 1, 2015, because it lacked plenary power to modify the child support obligation in the May 26, 2015 order. He also argues the trial court's modification order is void because it violated Rule 11 of the Texas Rules of Civil Procedure by enforcing the alleged oral agreement for him to pay child support based on $400.00 plus a portion of his social security retirement benefits.
First, the trial court had plenary power to modify the May 26, 2015 modification order, which required Father to pay $400.00 in child support based on his claim of zero resources — the amount was based on unemployment guidelines. However, subsequent to this order, the OAG filed a second modification action, specifically seeking to modify the May 25, 2015 order. Thereafter, both Father and Mother filed their own modification actions. These subsequent suits vested the trial court with plenary power to consider modification of its prior order. See TEX. FAM. CODE ANN. § 156.401(a). Section 156.401(a) specifically provides for modification of prior child support orders when the circumstances of the child or a person affected by the order have materially and substantially change since the date of the prior order's rendition. Id. § 156.401(a)(1)(A). At the time of the May 26, 2015 order, Father was unemployed. As discussed below, after the May 25, 2015 order was rendered, Father obtained employment, thereby materially and substantially changing his circumstances. Thus, the trial court had authority to render a new modification order. See id.
With regard to Father's Rule 11 argument, the record does not suggest the trial court made its child support determination based on an alleged agreement regarding payment of $400.00 plus a portion of Father's social security retirement benefits. Rather, as required by statute and discussed below, the trial court rendered its child support order based on Father's net resources. The retroactive nature of the child support was based on the parties' prior agreement. There is nothing in the record to suggest the trial court's modification order and the terms therein were based on any Rule 11 agreement alleged by Mother. We find this argument without merit.
Based on the foregoing, we hold the trial court did not abuse its discretion with regard to the award of retroactive child support. We overrule Father's first issue.
Determination of Net Resources
Father, in his second and third issues, appears to challenge the amount of child support awarded by the trial court. In these issues, Father argues the amount of support awarded by the trial court was erroneous because the trial court failed to properly determine net resources and awarded an amount that would reduce his social security retirement payments to zero.
A trial court may modify a child support order if "the circumstances of the child or a person affected by the order have materially and substantially changed since ... the date of the order's rendition." TEX. FAM. CODE ANN. § 156.401(a)(1)(A) (West Supp. 2017); see Reagins, 524 S.W.3d at 761; Trammell v. Trammell, 485 S.W.3d 571, 576 (Tex. App.—Houston [1st Dist.] 2016, no pet.). "A change in the obligor parent's income can constitute a material and substantial change in circumstances." Reagins, 524 S.W.3d at 761. Here, Father is a "person affected by the order" of the trial court, and therefore, his circumstances are subject to review to determine if they "have materially and substantially changed." Id.
As noted above, in deciding whether previously ordered child support should be modified, trial courts have broad discretion, and we will not reverse a trial court's modification order unless the trial court has clearly abused that discretion. Id. Under the abuse of discretion standard, claims that the evidence is legally and factually insufficient are not considered independent grounds, but merely factors in assessing whether the trial court abused its discretion. Id. In this context, we must determine whether the trial court had sufficient information upon which to exercise its discretion and if so, whether it acted reasonably. Id.
The first step in determining monthly child support obligations is to calculate, if feasible, the gross annual income of the obligor parent. See TEX. FAM. CODE ANN. § 154.061(a) (West 2014); see id. § 156.402; Stringfellow v. Stringfellow, 538 S.W.3d 116, 118 (Tex. App.—El Paso 2017, no pet.) (citing Grotewold v. Meyer, 457 S.W.3d 531, 533-34 (Tex. App.—Houston [1st Dist.] 2015, no pet.)); see TEX. FAM. CODE ANN. § 154.062(b), (c) (listing income to be included and excluded in calculation of parent's resources). There must be some evidence of a substantive and probative character of net resources. Reagins, 524 S.W.3d at 761. However, trial courts may calculate net resources on imprecise information. In re M.G., No. 05-15-00234-CV, 2016 WL 4120030, at *4 (Tex. App.—Dallas July 29, 2016, no pet.); T.G., 2013 WL 3154976, at *6.
The court then divides the annual gross income of the obligor parent by twelve to reach his monthly average, i.e., monthly gross wages. See TEX. FAM. CODE ANN. § 154.061(a); Stringfellow, 538 S.W.3d at 118. Next, the court determines the obligor parent's net monthly income by deducting taxes from the monthly gross wages pursuant to the tax chart that the Office of the Attorney General is required to promulgate. Stringfellow, 538 S.W.3d at 118; see TEX. FAM. CODE ANN. § 154.061(b); TEX. FAM. CODE ANN. § 154.062(d). Once net monthly income is determined, the trial court must further deduct any applicable expenses set out in section 154.062(d)(3)-(5), i.e., state income tax, union dues, and court-ordered health insurance premiums. Stringfellow, 538 S.W.3d at 118; see TEX. FAM. CODE ANN. § 154.062(d)(3)-(5). Once the final net monthly income is computed, the trial court applies the child support percentage guidelines set out in section 154.125(b) of the Code to this amount. Stringfellow, 538 S.W.3d at 118; see TEX. FAM. CODE ANN. § 154.125(b). As is applicable here, section154.125(b) provides that the obligor parent will pay twenty-five percent of net monthly income for two children. TEX. FAM. CODE ANN. § 154.125(b).
The steps set forth above are used in modification determinations as well as initial child support determinations. Compare id. § 154.062(b) with id. § 156.402. The best interest of the child should remain the trial court's primary consideration in deciding child support based upon a request for modification. Reagins, 524 S.W.3d at 761 (citing TEX. FAM. CODE ANN. § 154.406(b)); see also TEX. FAM. CODE ANN. § 154.122 (stating child support order conforming to statutory guidelines is presumed to be in best interest of child).
Here, the evidence shows that at the time of the original divorce and determination of child support in 2012, the parties agreed Father would pay no child support. Thereafter, in 2015, the OAG sought a modification, which the trial court granted. Because Father claimed he had no net resources, he was ordered to pay child support in the amount of $400.00 per month based on unemployment guidelines. However, after this May 26, 2015 order, Father and Mother sought further modification. Father claimed he had overpaid child support; Mother claimed Father's employment circumstances had changed and he should be ordered to pay child support in accordance with the statutory guidelines based on his net resources.
The evidence undeniably shows a change in Father's circumstances. See TEX. FAM. CODE ANN. § 156.401(a)(1)(A); Reagins, 524 S.W.3d at 761. At the time of the May 26, 2015 modification order, Father was unemployed, claiming zero net resources. The evidence at the October 2016 modification hearing showed Father had become employed. In support of Father's gross resources, Mother produced an application by Father for an apartment at the Eilan showing Father's gross monthly income was $5,835.00. The figure was disputed by Father, who claimed that despite his electronic signature on the document, he did not complete the application and the amounts stated therein were incorrect. He claimed his monthly income was much lower. Father testified he makes approximately $1,500.00 a month from his job as a telephone insurance solicitor with Allstate, but that after expenses, he brings home only $900.00 per month. Mother suggested Father's claimed income was at odds with his lifestyle.
We hold the trial court had sufficient evidence upon which to exercise its discretion. See Reagins, 524 S.W.3d at 761; Villalpando v. Villalpando, 480 S.W.3d 801, 810 (Tex. App.—Houston [14th Dist.] 2015, no pet); see also M.G., 2016 WL 4120030, at *4; T.G., 2013 WL 3154976, at *6. We hold the information contained in the Eilan application was some evidence the trial court could have relied upon in determining Father's gross monthly income, despite Father's claims and evidence to the contrary. See In re M.C.M., No. 04-15-00565-CV, 2015 WL 3181574, at *2 (Tex. App.—San Antonio June 8, 2016, no pet.) (mem. op.) (holding trial court does not abuse its discretion with regard to factual matters if its decision is supported by some probative and substantive evidence); In re A.S.G., 345 S.W.3d 443, 449 (Tex. App.—San Antonio 2011, no pet.) (same). A trial court does not abuse its discretion in determining child support if its decision is based on conflicting evidence and there is some evidence to support its decision. Villalpando, 480 S.W.3d at 811. Here, the trial court was faced with conflicting evidence — that presented by Mother based on the apartment application at Eilan versus the amounts asserted by Father. The trial court also had to assess the credibility of the witnesses, including Father. The trial court questioned Father's credibility on the record. As fact finder, it was within the trial court's discretion to reconcile the conflicting evidence and weigh the credibility of the witnesses. See In re F.A.R., No. 04-15-00517-CV, 2016 WL 2753868, at *1 (Tex. App.—San Antonio May 11, 2016, no pet.) (mem. op.). Thus, we hold the trial court did not abuse its discretion in determining Father's gross monthly income was $5,835.00.
The trial court then looked to the self-employment tax guidelines — it was undisputed Father worked as an independent contractor as opposed to an employee — to determine Father's net monthly income. See TEX. FAM. CODE ANN. § 154.061(b); id. § 154.062(d). Given Father's income, the guidelines for 2016 — the applicable year for purposes of this matter — prescribe a monthly net income of $4,169.65. See OFFICE OF THE TEXAS ATTORNEY GENERAL, 2016 Child Support Tax Chart, https://texasattorneygeneral.gov/files/cs/2016taxchart.pdf. The record does not include evidence that Father was entitled to any of the additional deductions set out in section 154.062(d)(3)-(5). See TEX. FAM. CODE ANN. § 154.062(d)(3)-(5). Nor does the evidence show business expenses, for purposes of deductions from Father's self-employment income, that were necessary to produce that income. See id. § 154.065(a). Rather, Father's evidence of expenses was based on general living expenses, not those particular to his work as telephone insurance solicitor.
Multiplying the statutory net monthly income attributable to Father — $4,169.65 — by twenty-five percent, see id. § 154.125(b), yields a monthly child support payment of $1,042.41 — an amount slightly less than that ordered by the trial court. However, we do not find this slight deviation from the guidelines to constitute an abuse of discretion. As noted above, the best interest of the child is always the trial court's primary consideration. Reagins, 524 S.W.3d at 761. Moreover, section 154.123 of the Code states a trial court may order child support payments in an amount other than that set forth in the statutory guidelines if the evidence rebuts the presumption that application of the guidelines is in the child's best interest. TEX. FAM. CODE ANN. § 154.123(a).
In determining whether deviation from the guidelines is in a child's best interest, the trial court can consider, among other things, the needs of the child and the amount of time of possession of and access to the child. Id. § 154.123(b)(1), (4). Here, there was evidence that one of the children has special needs — suffering from dyspraxia and still wearing diapers at the age of seven. There was also evidence of Father's reluctance for standard visitation with his children, requesting far less visitation than that afforded by a standard possession order. Thus, given this evidence, the trial court was within its discretion in awarding child support in an amount slightly higher than that provided by the guidelines. See id. § 154.123; see also In re E.R.T., No. 04-15-00071-CV, 2015 WL 9486824, at *2 (Tex. App.—San Antonio Dec. 30, 2015, no pet.) (mem. op.) (holding in review of modification order that trial court as fact finder is afforded great latitude in determining child's best interest with respect to child support).
Based on the foregoing, we hold the trial court calculated Father's net income as required by the Code. Although the trial court's award of child support deviated slightly from that set by the statutory guidelines, we hold the evidence supported the deviation. Accordingly, we overrule Father's second and third issues.
Underemployment
In his fourth issue, Father asserts "the trial court abused its discretion because there was no evidence to support a finding that [Father] was underemployed and the Court did not make an affirmative finding." The statement of the issue is followed by three sentences, unsupported by any citation to the record, regarding Father's job history and attempts to find employment. Then Father concludes "it was an abuse of discretion for the trial court to state that [Father] might be underemployed." Father does not provide any citation to authority within this issue.
First, we hold this issue is waived due to inadequate briefing. See, e.g., Browne v. City of San Antonio, No. 04-11-00219-CV, 2012 WL 11756, at *5 (Tex. App.—San Antonio Jan. 4, 2012, pet. denied) (mem. op.). The Texas Rules of Appellate Procedure require an appellant to provide specific argument and analysis in the brief, which includes appropriate citations to the record and authorities. See TEX. R. APP. P. 38.1(i). Father has not provided any citations to the record within this issue, nor has he cited this court to any relevant authority. Rather, he summarily claims some sort of error based on an alleged statement by the trial court that he might be underemployed. The trial court never stated Father might be underemployed. Rather, the trial court stated, in response to Mother's allegation that he was intentionally underemployed, that it was "a big question." Accordingly, we hold with regard to this issue that Father has not presented anything for our review. See, e.g., In re C.L., No. 04-03-00638-CV, 2004 WL 86136, at *3 (Tex. App.—San Antonio Jan. 21, 2004, no pet.) (mem. op.) (holding that appellant waived error by providing nothing more than four-sentence "argument" summarily claiming there was no evidence that termination was in best interest of children).
Moreover, even if not waived due to inadequate briefing, Father's complaint is unclear. Is he claiming the trial court erred with regard to the amount of child support ordered to be paid by Father? Is he suggesting the amount he was ordered to pay was based on his alleged intentional underemployment? If so, this argument is without merit because there is nothing in the record to suggest the trial court based its child support determination on the allegation of underemployment. Rather, the record shows, as discussed above, that the trial court based its child support determination on: (1) Father's gross monthly income — as stated in the application for the Eilan apartment; (2) application of the tax guidelines promulgated by the Texas Attorney General; and (3) the child support percentage guidelines set out in the Code to this amount. See TEX. FAM. CODE ANN. § 154.061(b); id. § 154.062(d); id. § 154.125(b). Accordingly, we overrule Father's fourth issue.
Findings of Fact — Section 154 .130 of the Code
Finally, in his fifth issue, Father contends the trial court erred by failing to make findings pursuant to section 154.130(b) of the Code. Section 154.130 of the Code concerns when findings relating to a child support order are mandated and the nature of the findings. Id. § 154.130. Father contends the trial court was required to make the findings because "the court did not determine [his] net resources." Mother counters, arguing the findings were not required because they were not timely requested.
Here, as discussed above, although disputed by Father, the trial court was provided with sufficient evidence to allow the trial court to find, in its discretion, that Father's gross monthly income was $5,835.00 per month. Performing the statutory calculations yields a monthly child support payment of $1,042.41 — an amount slightly less than that ordered by the trial court, thereby triggering section 154.130(a)(3). See id. § 154.130(a)(3).
The version of section 154.130 in effect at the time the of trial court's order stated, in pertinent part:
(a) Without regard to Rules 296 through 299, Texas Rules of Civil Procedure, in rendering an order of child support, the court shall make the findings required by Subsection (b) if:
Acts of May 28, 2009, 81st Leg., R.S., ch. 767, § 6, 2009 Tex. Gen Laws 1940 (amended 2017) (current version at TEX. FAM. CODE ANN. § 154.130(a)). Subsection (b) lists the findings the court must make: (1) net resources of the obligor per month; (2) net resources of the obligee per month; (3) the percentage applied to the obligor's net resources for child support; and (4) if applicable, the reasons the amount of child support varies from the guidelines. Id.(1) A party files a written request with the court not later than ten days after the date of the hearing;
(2) A party makes an oral request in open court during the hearing; or
(3) The amount of the child support ordered by the court varies from the amount computed by applying the percentage guidelines under Section 154.125 or 154.129, as applicable.
Father did not file his request for findings within ten days after the final hearing, which took place on October 11, 2016. Rather, he filed his request on December 13, 2016. Thus, according to Mother, his request was untimely and the trial court was not required to make the section 154.130(b) findings. Mother's argument is in error because she fails to recognize the statute provides that findings are mandated if any one of three events occurs: (1) a timely request; (2) an oral request during the hearing; or (3) a variance in the amount of child support ordered by the trial court and the amount due pursuant to the guidelines. See id.; see also Aguilera v. Aguilera, No. 04-13-00034-CV, 2014 WL 769445, at *2 (Tex. App.—San Antonio Feb. 26, 2014, no pet.) (mem. op.) (holding that trial court erred in failing to make section 154.130(b) findings when amount of child support ordered deviated from amount computed by applying percentage guidelines). It is this third provision upon which Father relies.
Because of the variance between the amount of child support ordered by the trial court — $1,192.63 — and the amount due under the application of the guidelines — $1,042.41, the trial court was required to make the findings set out in subsection (b). See Acts of May 28, 2009, 81st Leg., R.S., ch. 767, § 6, 2009 Tex. Gen Laws 1940 (amended 2017); Aguilera, 2014 WL 769445, at *2. The trial court's failure to make the findings constitutes error. See Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (per curiam); Aguilera, 2014 WL 769445, at *2; In re D.G.R., No. 04-05-00439-CV, 2006 WL 1684677, at *1 (Tex. App.—San Antonio June 21, 2006, no pet.) (mem. op.). However, we hold Father was not harmed by the trial court's failure to make the section 154.130(b) findings because he was not prevented from properly presenting his case to this court. See Tenery, 932 S.W.2d at 30; D.G.R., 2006 WL 1684677, at *1. An appellant is prevented from properly presenting his case to an appellate court when he must guess the reason or reasons the trial court ruled against him. D.G.R., 2006 WL 1684677, at *1.
Father is not forced to guess the basis upon which the trial court ordered him to pay child support in the amount of $1,192.63. See D.G.R., 2006 WL 1684677, at *1. The record establishes the amount was based upon the income stated by Father in his application for the Eilan apartment, application of the self-employment tax guidelines in section 154.061, and the percentage required when there are two children. Although there is a slight variance of $150.22 between the amount of child support ordered by the trial court ($1,192.63) and the amount mandated by the guidelines ($1,042.41), we hold this variance did not force Father to guess the trial court's basis for the child support award nor did it prevent him from challenging the award on appeal. Moreover, Father has not identified any issue he was unable to brief as a result of the trial court's failure to making the statutory findings. Accordingly, we hold the trial court's error in failing to make findings pursuant to section 154.130(b) was harmless. Father's fifth issue is overruled.
Additionally, the evidence of Father's income, expenses, and net resources was not without contradiction. Thus, we cannot say evidence of Father's net resources was so conclusively established that the trial court materially varied from the statutory support guidelines, precluding a finding of harm. See Walker v. Walker, No. 02-13-00229-CV, 2014 WL 2619147, at *4 (Tex. App.—Fort Worth June 12, 2014, pet. denied) (mem. op.); Friermood v. Friermood, 25 S.W.3d 758, 761 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
CONCLUSION
Based on the analysis set out above, we overrule Father's issues and affirm the trial court's modification order.
Marialyn Barnard, Justice