Opinion
No. 05-02-01213-CV.
Opinion issued June 16, 2003.
Appeal from the 255th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 00-10362-S.
Affirmed as reformed.
MEMORANDUM OPINION
Mother sued Father to establish paternity, support, and conservatorship for their minor twins. Father counterclaimed requesting that the court appoint him sole managing conservator or joint managing conservator with primary possession and control of the children and award him child support. The trial court declared Father as the father of the twins, appointed Mother and Father joint managing conservator establishing primary physical residence with Mother, and ordered Father to pay child support in the amount of $800 per month. In three issues, Mother argues that (1) the trial court abused its discretion by deviating from the child support guideline requiring $1500 per month in child support and (2) legally and factually insufficient evidence exists to support its deviating from the guidelines. We reverse the trial court's finding, reform the trial court's judgment, and affirm the judgment as reformed.
The trial court denied Mother's motion for partial new trial in which she alleged that the trial court abused its discretion in deviating from the support guidelines and that the evidence did not factually or legally support that deviation.
DID THE TRIAL COURT ABUSE ITS DISCRETION IN DEVIATING FROM THE FAMILY CODE'S GUIDELINES?
Mother asks only that we review the trial court's deciding that the evidence justified a variance from the child support guidelines. Mother requests this Court enter judgment awarding her $1500 per month in child support or remand the case to the trial court for entry of a judgment awarding $1500 per month in child support. Because appellee did not file a brief with this Court, he has not contradicted appellant's factual statements and we take them as true. Tex.R.App.P. 38.1(f).
1. Standard of Review
We review any order setting child support to determine whether the trial court clearly abused its discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). An abuse of discretion occurs when the trial court acts arbitrarily and unreasonably without reference to guiding rules and principles. Id. In an appeal under an abuse of discretion standard, legal and factual sufficiency are not independent grounds of error but are relevant factors in determining if the trial court abused its discretion. Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex.App.-Dallas 1999, no pet.). A trial court does not abuse its discretion if its decision has as its basis substantive and probative evidence. Sanchez v. Sanchez, 915 S.W.2d 99, 102 (Tex.App.-San Antonio 1996, no pet.).
After determining the net resources of the parties, the trial court must follow a three-step process when setting child support under the Family Code guidelines. First, the trial court must determine the number of children before the court seeking support. Second, the trial court applies the statutory guideline in determining the percentage of net resources to be paid as support for the children before the court. Finally, the trial court determines if a variance from the guidelines is justified under section 14.054 of the Family Code. Tex. fam. Code Ann. § 154.122(a) (Vernon 2002).
We presume that child support established by and conforming to the guidelines is reasonable and in the best interest of the child. Id. Only evidence showing that applying the guidelines would be unjust or inappropriate under the circumstances will rebut this presumption. Tex. Fam. Code Ann. § 154.123(a) (Vernon 2002). If a trial court orders child support which varies from the guidelines, the trial court must enter findings of fact stating why applying the guidelines would be unjust or inappropriate. Tex. Fam. Code Ann. § 154.130(b) (Vernon 2002). In deciding whether application of the guidelines would be unjust or inappropriate, the trial court must look at all relevant factors including amount of "time of possession of and access to" the children. Tex. Fam. Code Ann. § 154.123(b) (Vernon 2002).
2. Application of Law to Facts
The trial court's final judgment made each parent a joint managing conservator with primary residence of the children being with Mother. The trial court entered the statutory standard possession order for Father's access to and possession of the children. Father does not challenge the trial court's conservatorship or possession order and findings. Nor does the record show any agreement between Mother and Father to allow access to or possession of the children greater than that the trial court ordered.
The trial court found that Father has "standard visitation with the expanded elections" and the children "require substantial care and have special needs" and ordered Father to pay child support in the amount of $800 per month and $200 per month for reimbursement of the cost of health care insurance for the twins. The trial court also found that (1) Father's net resources were $7,166.66 per month, (2) the amount of child support would be $1500 per month if it applied the statutory guideline of 25% for two children to the first $6000 of Father's net resources, and (3) "[t]he reason that the amount of child support ordered per month by the court varies from the [statutory guideline amount of $1500 per month] is the time [Father] has spent and plans to continue to spend with the child [sic]-at times in past it was significantly more than one-half." In determining whether the trial court abused its discretion, we can only review the ground which the trial court specified in justifying its order varying from the guidelines-the amount of time Father has spent and plans to spend with the children.
Father lived with Mother and the children for approximately three months. Father testified that, after he stopped living with Mother, he had possession of the children only during the times specified in the temporary order. Although the temporary orders exceeded the statutory guidelines for possession, the evidence does not show that Father spent "significantly more than one-half" the time with his children.
The trial court's final order awarded Father the Family Code's standard possession schedule. A standard possession order neither suffices to make the child support guidelines unjust or inappropriate nor justifies the trial court's reducing the guideline's predetermined child support amount. Rather, it dictates the opposite. Because Father's possession did not exceed that of the trial court's temporary possession order and no evidence exists to show that his future possession would exceed the final order, we conclude the trial court abused its discretion in ordering a variance solely because of the time Father spent with the children in compliance with the temporary order or "will spend in the future." Accordingly, we reverse the trial court's finding and judgment varying the guideline's amount of monthly child support.
We take as true all unchallenged trial court findings, including its finding that $1500 per month was the appropriate amount of child support to be paid under the guidelines, we reform the judgment to reflect the amount of child support to be paid by Father to Mother at $1500 per month.
We affirm the trial court's judgment as reformed.