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holding trial court did not abuse its discretion in ordering father to pay child's travel expenses where father failed to present any evidence of the cost of the travel
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No. 04-16-00335-CV
04-12-2017
IN THE INTEREST OF A.M., a Child
MEMORANDUM OPINION
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-05876
Honorable Renée Yanta, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice AFFIRMED AS MODIFIED
Candace Gillette filed the underlying lawsuit against Adam McKenzie to adjudicate the parentage of A.M. Adam McKenzie filed a counterclaim for appointment as a managing conservator with the exclusive right to determine A.M.'s primary residence. McKenzie appeals the trial court's order, contending the trial court abused its discretion by: (1) granting Gillette the right to claim the dependency exemption for A.M. every year for income tax purposes; (2) failing to designate the geographic area within which Gillette was required to maintain A.M.'s primary residence; (3) ordering McKenzie to pay 100% of all travel costs associated with A.M.'s travel for the purpose of McKenzie exercising his periods of possession; (4) ordering McKenzie to pay retroactive child support and using the term "child support arrearages" instead of "retroactive child support" in its order; (5) providing for extended standard possession as opposed to equal possession when A.M. is enrolled in a state sponsored pre-k or kindergarten. We modify the trial court's order in part and affirm the order as modified.
In her brief, Gillette does not respond to the specific issues presented by McKenzie but instead contends this court should modify the trial court's order because the parties currently live within 100 miles or less of each other. This court only has jurisdiction to review the trial court's order based on the evidence presented at the hearing and contained in the appellate record. Only the trial court has jurisdiction to modify its order based on subsequent events or changes in circumstances.
BACKGROUND
Gillette and McKenzie were involved in a relationship while both were living in Georgia. Gillette moved to Texas while she was pregnant with A.M., who was born on February 5, 2014. Gillette filed the underlying petition to adjudicate parentage on April 9, 2015, and McKenzie filed a cross-claim.
After a bench trial, the trial court appointed the parents joint managing conservators and ordered Gillette had the exclusive right to designate A.M.'s primary residence. With regard to possession, the trial court ordered alternating monthly possession until A.M. is enrolled in a state sponsored pre-k or kindergarten. Because McKenzie was ordered to pay all travel expenses for A.M. to travel to Georgia during the periods of his possession, the trial court ordered McKenzie would not pay any child support until A.M. is enrolled in a state sponsored pre-k or kindergarten. Once A.M. is enrolled in a state sponsored pre-k or kindergarten, the trial court ordered McKenzie will have possession under an extended standard possession order and will pay Gillette $340.00 per month in child support which is reduced from the child support guidelines because McKenzie will still be required to pay travel expenses.
Based on the child support guidelines, Gillette's attorney argued to the trial court McKenzie owed about $9,000 in child support retroactive to the date of A.M.'s birth. During the hearing, however, evidence was presented regarding expenses McKenzie paid in support of A.M. prior to the entry of temporary orders, including payments made for day care and for various other necessities. After additional discussion, the trial court verbally pronounced that McKenzie owed $5,060 in retroactive child support. In its findings of fact, the trial court similarly found McKenzie owed Gillette $5,060 in retroactive child support. In its order, however, the trial court granted Gillette "a cumulative judgment for child support arrearages" in the amount of $5,060.
The attorney calculated this amount based on the time period from the date of A.M.'s birth to the date temporary orders were entered.
McKenzie appeals challenging various provisions in the trial court's order.
STANDARD OF REVIEW
"In family law cases, issues such as conservatorship, visitation, or child support are evaluated against an abuse of discretion standard." In re T.K.D-H., 439 S.W.3d 473, 481 (Tex. App.—San Antonio 2014, no pet.). "When an appellant challenges the legal and factual sufficiency of the evidence in cases where the proper standard is abuse of discretion, we engage in a two-prong analysis: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion." Id. "A trial court does not abuse its discretion if it bases its decision on conflicting evidence, and ... some evidence supports its decision." In re A.S.G., 345 S.W.3d 443, 449 (Tex. App.—San Antonio 2011, no pet.).
DEPENDENCY EXEMPTION
Although not discussed at the hearing, the trial court's order states Gillette "shall have the dependency exemption for the child every year for income tax purposes." In his first issue, McKenzie contends the trial court erred in awarding the exemption to Gillette because a parent's entitlement to the exemption is governed by federal law.
In Ruiz v. Ruiz, this court addressed a similar complaint by a father with regard to a portion of a divorce decree that allowed the mother to claim all six children as dependents for federal income tax purposes. 668 S.W.2d 866, 867 (Tex. App.—San Antonio 1984, no writ). In addressing the issue, this court held:
The question of income tax exemptions is clearly an area which has been preempted by the federal government and must be decided according to applicable federal statutes, rules and regulations. State courts have no power to interfere in this area.Id.; see also In re J.G.Z., 963 S.W.3d 144, 150 (Tex. App.—Texarkana 1998, no pet.) (quoting Ruiz); Lystad v. Lystad, 916 S.W.2d 617, 618 (Tex. App.—Fort Worth 1996, no writ) (holding trial court did not have authority to disregard federal law and award a parent an exemption to which he was not entitled). Based on our holding, we reformed the decree by deleting the language allowing the mother to claim the dependency exemption. Ruiz, 668 S.W.2d at 867.
As McKenzie notes in his brief, the federal income tax regulations provide if a child resides with both divorced parents for an equal period of time, the parent with the higher adjusted gross income is entitled to the dependency deduction for the child. 26 C.F.R. § 1.152-4(a). At the hearing, although limited references were made to the parties' net incomes, no evidence was presented regarding the parties' adjusted gross incomes. Accordingly, the trial court erred in ordering that Gillette was entitled to the dependency exemption every year. See In re C.P.L., No. 07-11-00128-CV, 2011 WL 6217426, at *4-5 (Tex. App.—Amarillo Dec. 14, 2011, no pet.) (mem. op.) (holding trial court abused its discretion in awarding father the federal income tax dependency exemption where no evidence supported a finding that father was entitled to the exemption). Therefore, we sustain McKenzie's first issue and modify the trial court's order to delete the language regarding the tax exemption. See Ruiz, 668 S.W.2d at 867.
GEOGRAPHIC RESTRICTION
In his second issue, McKenzie contends the trial court erred in failing to designate the geographic area within which Gillette should maintain A.M.'s primary residence.
When a trial court renders an order appointing joint managing conservators, the trial court must designate the conservator who has the exclusive right to determine the child's primary residence and:
(A) establish, until modified by further order, a geographic area within which the conservator shall maintain the child's primary residence; orTEX. FAM. CODE ANN. § 153.134(b)(1)(A)-(B) (West 2014). In this case, the trial court's order designates Gillette as the conservator with the exclusive right to determine A.M.'s primary residence. Because the trial court's order does not establish a geographic area within which Gillette must maintain A.M.'s primary residence, the trial court necessarily intended that Gillette could determine A.M.'s primary residence without regard to geographic location. See In re Marriage of Vick, No. 07-15-00019-CV, 2016 WL 6560049, at *3 (Tex. App.—Amarillo Nov. 3, 2016, no pet.) (mem. op.) (concluding decree clearly intended no geographic restriction was ordered although decree did not contain the phrase "without regard to geographic location").
(B) specify that the conservator may determine the child's primary residence without regard to geographic location.
McKenzie contends the trial court erred in not establishing a specific geographic area because Gillette had resided in four different states in the last five years, which McKenzie's brief describes as Florida to Illinois, Illinois to Georgia, and Georgia to Texas. At the hearing, however, Gillette testified she moved to Illinois to care for her father because he was in hospice and her sister was pregnant and on bed rest. Gillette chose to move to Georgia because of the poor quality of the school districts in Chicago. At that time, Gillette had two children, and she testified she wanted a better life for her children. Finally, Gillette testified she moved to Texas because McKenzie was abusive, and she had family in Texas who would help her with the children. Based on Gillette's testimony, the trial court could have determined no geographic restriction should be imposed given the reasons Gillette provided for her three moves. Because some evidence supports the trial court's decision not to impose a geographic restriction, we hold the trial court did not abuse its discretion.
TRAVEL EXPENSES
In his third issue, McKenzie contends the trial court abused its discretion in ordering him to pay all travel expenses for A.M. to travel to Georgia during the periods of his possession every other month.
With regard to travel expenses, "'the trial court should consider the parties' financial situations to ensure that the travel expenses are not so great that they would prevent the proper support of the children by either party.'" In re N.T.P., 402 S.W.3d 13, 22 (Tex. App.—San Antonio 2012, no pet.) (quoting In re Marriage of Bertram, 981 S.W.2d 820, 830 (Tex. App.—Texarkana 1998, no pet.)). In its findings of fact, the trial court expressly found McKenzie is able to pay the travel expenses while exercising periods of possession. In addition, the trial court did not order McKenzie to pay any child support while the parties had equal possession and ordered reduced child support when A.M. was enrolled in a state sponsored pre-k or kindergarten based on the travel expenses he would incur. See In re D.T.M., No. 01-01-00241-CV, 2002 WL 31521151, at *6 (Tex. App.—Houston [1st Dist.] Nov. 14, 2002, no pet. ) (mem. op.) (holding trial court did not abuse its discretion in ordering father to pay 100% of travel expenses based in part on trial court's offsetting burden of payment of travel expenses with a reduction in monthly child support). With regard to McKenzie's financial situation, McKenzie did not present any evidence of the cost of the travel; therefore, the record contains no evidence that the cost of travel would be so great as to prevent his proper support of A.M. Without some evidence to support such a showing, we cannot hold the trial court abused its discretion in requiring McKenzie to pay the travel expenses.
RETROACTIVE CHILD SUPPORT
In his fourth, fifth, and sixth issues, McKenzie contends the trial court abused its discretion in ordering him to pay retroactive child support. McKenzie also contends the trial court erred in referring to the retroactive child support as child support arrearages in its order.
Upon a final adjudication of parentage, the trial court may order child support retroactive to the time of birth. State v. Johnican, 830 S.W.2d 215, 217 (Tex. App.—Houston [14th Dist.] 1992, no writ); TEX. FAM. CODE ANN. § 160.636(g) (West Supp. 2016). In this case, the trial court entered temporary orders requiring McKenzie to pay child support, and the evidence is undisputed that McKenzie paid the support as ordered. McKenzie first contends the trial court erred in ordering him to pay retroactive child support because the temporary orders precluded the trial court from ordering retroactive child support. In support of his argument, McKenzie cites section 154.009(a) of the Texas Family Code which provides a trial court "may order a parent to pay retroactive child support if the parent: (1) has not previously been ordered to pay support for the child; and (2) was not a party to a suit in which support was ordered." TEX. FAM. CODE ANN. § 154.009(a) (West 2014). McKenzie's reliance on the temporary orders to argue he has previously been ordered to pay support for A.M. is misplaced. We disagree that section 154.009(a) precludes a trial court from ordering retroactive child support in any suit where temporary orders required the payment of child support pending trial. See In re A.B., 368 S.W.3d 850, 854-55 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding father was undisputedly not previously ordered to pay support even though temporary orders required father to pay prospective child support); In re J.C.I.-C., No. 04-05-000932-CV, 2006 WL 1624326, at *1 (Tex. App.—San Antonio June 14, 2006, no pet.) (mem. op.) (holding trial court did not abuse its discretion in awarding retroactive child support even though temporary orders were signed setting child support). Instead, section 154.009(a) precludes a trial court from ordering retroactive child support if a parent has previously been ordered to pay support for the child in a suit other than the one in which the retroactive child support is awarded. Therefore, section 154.009(a) did not preclude the trial court from ordering McKenzie to pay retroactive child support.
We acknowledge the Dallas court's holding in In re A.E.R., No. 05-15-00019-CV, 2016 WL 4205683, at *4 (Tex. App.—Dallas Aug. 9, 2016, pet. filed), could be read to the contrary; however, we respectfully disagree with the analysis of our sister court. See In re Griffith, 485 S.W.3d 529, 536 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (noting appellate court is not bound by a decision of a sister court).
McKenzie next contends the trial court erred in ordering him to pay retroactive child support in the amount of $5,060. Section 154.131 of the Texas Family Code provides "[t]he child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered." TEX. FAM. CODE ANN. § 154.131(a). In his brief, McKenzie focuses on the factors a trial court generally must consider in ordering retroactive child support. Id. at § 154.131(b). Section 154.131(c), however, provides, "It is presumed that a court order limiting the amount of retroactive child support to an amount that does not exceed the total amount of support that would have been due for the four years preceding the date the petition seeking support was filed is reasonable and in the best interest of the child." Id. at § 154.131(c). The presumption created under section 154.131(c) "may be rebutted by evidence that the obligor: (1) knew or should have known that the obligor was the father of the child for whom support is sought; and (2) sought to avoid the establishment of a support obligation to the child." Id. at § 154.131(d).
As previously noted, A.M. was born on February 5, 2014. Gillette filed her petition in the instant case on April 9, 2015, approximately fourteen months after A.M.'s birth. The parties stipulated the amount McKenzie would be required to pay under the child support guidelines was $453 per month. The total amount of support that would have been due for the fourteen months preceding the date Gillette filed her petition was $6,342 ($453 x 14 months). Because the $5,060 in retroactive child support ordered by the trial court is less than $6,342, the amount of the retroactive child support is presumed to be reasonable and in A.M.'s best interest. No evidence was presented to rebut the presumption. Accordingly, the trial court did not abuse its discretion in ordering McKenzie to pay $5,060 in retroactive child support.
We note the evidence also established McKenzie had been employed at the same job for six years.
Finally, McKenzie contends the trial court erred in referring to the "retroactive child support" as "child support arrearages" in its order. We agree. As previously noted in the background section of this opinion, the trial court heard evidence on the amount of retroactive child support it should award and verbally pronounced the amount of retroactive child support awarded to Gillette would be $5,060. Although the trial court's findings of fact accurately reflect its verbal pronouncement, the order incorrectly refers to the retroactive child support as "child support arrearages." Because it is obvious the order contains a clerical error, we modify the order to state Gillette is granted a cumulative judgment for "retroactive child support" as opposed to "child support arrearages." See Valdez v. Valdez, 930 S.W.2d 725, 729 (Tex. App.—Houston [1st Dist.] 1996, no writ) (modifying judgment to correct obvious clerical error); McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex. App.—Dallas 1992, writ denied) ("[W]hen the record reflects a clerical variance between a judgment announced in open court and the judgment eventually signed by the trial judge, the appellate court can modify the judgment to correct the mistake."). We further note "[a]n arrearage is the difference between the payments made and the payments required under a child support order." In re House, No. 06-99-00155-CV, 2000 WL 1238845, at *2 (Tex. App.—Texarkana Sept. 1, 2000, no pet.) (not designated for publication). Because McKenzie had paid all amounts he was ordered to pay in the temporary orders, he did not owe any arrearage.
POSSESSION ORDER
In his final issue, McKenzie contends the trial court abused its discretion in reducing his possession to an extended standard possession order once A.M. is enrolled in a state sponsored pre-k or kindergarten. McKenzie points to the distance he is required to travel to exercise his possession rights and the harm that would result by decreasing his possession of A.M. by more than 50%.
In making his argument, McKenzie does not challenge the trial court's express findings of fact relating to this issue, which included the following:
18. When [A.M.] begins state sponsored pre-k or kindergarten, [A.M.] will require more structure; thus, month-long periods with each parent during the school year will not be beneficial to the child.Because some evidence was presented in support of the foregoing findings, and these findings support the trial court's possession order, McKenzie's final issue is overruled.
19. [Gillette] has significant experience raising children, and has been successful in parenting her two older children.
20. [McKenzie] has little experience raising a child full-time.
21. Because [Gillette] has more experience and a positive history in parenting, in addition to other factors, when [A.M.] begins state sponsored pre-k or kindergarten, [A.M.]'s needs will be best met by [A.M.] living primarily with [Gillette] and [McKenzie] having standard possession, as that is defined by the Texas Family Code.
We note the trial court's order actually gave McKenzie extended standard possession.
CONCLUSION
The trial court's order is modified to delete the language regarding the tax exemption and to modify the reference to "child support arrearages." The trial court's order is affirmed as modified.
Sandee Bryan Marion, Chief Justice