                                 NUMBER 13-13-00367-CV

                                     COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


                                  IN THE INTEREST OF L.J.M.


                         On appeal from the 256th District Court
                               of Dallas County, Texas.


                                 MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Benavides
                   Memorandum Opinion by Justice Rodriguez
       Appellant L.C.M., the father of L.J.M., an adult child who is mentally and physically

disabled, appeals from the trial court’s order increasing his monthly child support.1 See

TEX. FAM. CODE ANN. § 154.306 (West, Westlaw through 2013 3d C.S.). In his sole issue,

appellant argues that the trial court abused its discretion in upwardly modifying his support

obligation to his adult disabled child. We affirm.


       1   We use the parties’ initials to protect L.J.M.'s privacy.
                                        I.      BACKGROUND2

        Appellant and C.G.J., L.J.M.'s mother, divorced in 2006.                  At the time of the

divorce, their daughter, L.J.M., was 22 years old. The final decree of divorce contains a

finding that L.J.M. requires substantial care and personal supervision and will be unable

to support herself. Appellant was ordered to pay C.G.J. child support in the amount of

$577.00 per month beginning in September 2012 and continuing each month thereafter

until further order of the court. The divorce decree did not contain any findings as to how

this amount was determined.

        The Office of the Attorney General of Texas (O.A.G.) filed a “Petition for

Confirmation of Non-Agreed Child Support Review Order” on April 3, 2012, seeking to

increase appellant’s child support obligation.              Appellant filed a counter-petition to

terminate or decrease his child support obligation.              C.G.J., although represented by

counsel, did not file an answer or seek affirmative relief from the court.

        The trial court held a hearing on the O.A.G.’s petition. At the conclusion of the

hearing, the trial court issued the following findings of fact and conclusions of law:

        In response to the request of Respondent, [L.C.M.], the Court makes and
        files the following as original Findings of Fact and Conclusions of Law in
        accordance with rules 296 and 297 of the Texas Rules of Civil Procedure
        and section 154.130 and 154.306 of the Texas Family Code.

        Findings of Fact – SAPCR

        1. [L.C.M.] is the biological father of the following child:

                        Name: [L.J.M.]
                        Sex: Female


       2 This case is before the Court on transfer from the Fifth Court of Appeals in Dallas pursuant to a

docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. (West,
Westlaw through 2013 3d C.S.).
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                   Birth date: [May 1984] [3]

Findings of Fact

2. [L.J.M.], age 28, is an adult disabled child pursuant to Texas Family
   Code sec. 154.302.

3. The Court finds that [L.J.M.] requires considerable existing and future
   care because of her mental and physical disability.

4. The Court finds that [C.G.J] provides substantial care and personal
   supervision of [L.J.M.], and spends at least forty hours or more per week
   caring for [L.J.M.]

5. The Court finds that [L.C.M.] does not provide any care or supervision
   for [L.J.M.] and that [L.C.M.] has not visited or spent any time with the
   child in several years.

6. The Court finds that [C.G.J.] pays for daycare and all other personal
   expenses for [L.J.M.]

7. The child’s father, [L.C.M.], has monthly net resources in the amount of
   $5,132.37.

8. The child's mother, [C.G.J.], has monthly net resources in the amount of
   $2,000.00.

9. The child receives Medicare benefits in the amount of $128.00 per
   month.

10. The Court finds that attorney Lorenzo Brown should be awarded
    attorney’s fees of $1,000.00 for the failure of [L.C.M.] to properly respond
    to discovery in this case.

Findings of Fact as Conclusions of Law

11. Any finding of fact that is a conclusion of law shall be deemed a
    conclusion of law.

Conclusions of Law - Child Support

12. [L.C.M.] should pay child support in the amount of $1,026.47 per month.


3   We omit L.J.M.’s full date of birth for privacy reasons.
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       13. [L.C.M.] is ordered to pay attorney’s fees for discovery abuse in the
           amount of $1,000.00.

(Some emphases omitted.) This appeal followed.

                                II.     STANDARD OF REVIEW

       A judgment modifying child support is reviewed under an abuse of discretion

standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); see In re A.M.W., 313

S.W.3d 887, 890 (Tex. App.—Dallas 2010, no pet.) (holding that a trial court has broad

discretion in setting or modifying child support payments). A trial court’s decision must

be arbitrary, unreasonable, and without reference to guiding principles for the appeals

court to determine there was an abuse of discretion. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 242 (Tex. 1985).

       In this family law context, legal and factual sufficiency are factors in determining

whether there was an abuse of discretion by the trial court. Stucki v. Stucki, 222 S.W.3d

116, 119 (Tex. App.—Tyler 2006, no pet.). There is a two-prong test to determine

whether the trial court abused its discretion because of insufficient evidence: (1) did the

trial court have sufficient evidence to exercise its discretion; and (2) did the trial court err

in the application of such discretion? Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—

Fort Worth 2004, no pet.). The trial court is given the discretion on whether to believe

the testimony of the witnesses and how to resolve conflicts in testimony. In re M.P.M.,

161 S.W.3d 650, 655 (Tex. App.—San Antonio 2005, no pet.)

       When evaluating legal sufficiency of the evidence, the court must view all evidence

in the light most favorable to the verdict and consider every reasonable inference that

would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). “The final

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test for legal sufficiency must always be whether the evidence at trial would enable

reasonable and fair-minded people to reach the decision under review.”              Id. at 827.

When reviewing factual sufficiency, the court examines all of the evidence in a neutral

light; a finding will be set aside only if it is clearly wrong and contrary to the weight of the

evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

       Because the trial court filed findings of fact and conclusions of law, we are further

guided by rule 299:

       [W]hen findings of fact are filed by the trial court they shall form the basis of
       the judgment upon all grounds of recovery and of defense embraced
       therein. The judgment may not be supported upon appeal by a presumed
       finding upon any ground of recovery or defense, no element of which has
       been included in the findings of fact; but when one or more elements thereof
       have been found by the trial court, omitted unrequested elements, when
       supported by evidence, will be supplied by presumption in support of the
       judgment. Refusal of the court to make a finding requested shall be
       reviewable on appeal.

TEX. R. CIV. P. 299 (emphasis added).

                                   III.   APPLICABLE LAW

       Under Texas Family Code section 154.306, the court shall determine and give

special consideration to four factors when determining the support obligation for a child

over eighteen years of age: (1) any existing or future needs of the adult child directly

related to the adult child’s mental and physical disability; (2) whether the parent pays for

or will pay for the care or supervision of the adult child or provides substantial care and

personal supervision of the adult child; (3) the financial resources available to both

parents for the support; and (4) any other resources or programs available for the support,

care, and supervision of the adult child. TEX. FAM. CODE ANN. § 154.306


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                                     IV.     DISCUSSION

       By one issue, appellant argues that the trial court misapplied the law by not giving

special consideration to the four statutorily-required factors in section 154.306. See id.

A.     The Evidence

       The only testimony at the hearing on the O.A.G.’s motion was from C.G.J. She

testified that she is the mother of L.J.M., who was age 28 at the time of the proceedings.

C.G.J. has been married to her current husband for the past four years. Together, the

couple runs a funeral home; C.G.J. has worked as a funeral director since 1980. C.G.J.’s

salary from the funeral home is approximately $2,000 per month. In addition to L.J.M.,

C.G.J. has a 23-year-old son, who lives at home but does not pay rent. C.G.J. also has

a step-daughter, age 6, who does not live at home but visits regularly.

       C.G.J. testified that L.J.M. is “profoundly” mentally disabled. L.J.M. only has a

few vocabulary words, such as “momma,” “bye,” “granny,” and “daddy.” Other than the

listed words, C.G.J. considers L.J.M. nonverbal. Because of her mental and physical

disabilities, L.J.M. is unable to support herself.

       L.J.M. previously lived in a group home in Grand Prairie for ten years. C.G.J.

testified that L.J.M. was extremely unhappy at the group home. Upon returning from

outings with C.G.J., L.J.M. would cry and refuse to get out of C.G.J.’s car. C.G.J. also

testified that L.J.M. would repeatedly say the word “momma” while at the group home,

forcing the group home staff to call C.G.J.

       In November of 2012, L.J.M. returned to live with C.G.J. C.G.J. testified that she

had been trying to remove L.J.M. from the group home for years, because she and L.J.M.

were both unhappy about the situation.
                                              6
       C.G.J. testified that the cost to keep L.J.M. in the group home was $607 per month.

C.G.J. also had additional expenses for L.J.M. while she lived at the home, including:

$100 per month for toiletries; $60 per month for various activities; $100 per month for

snacks; $120 per month for clothes; $125 per month for hair expenses; plus the cost of

gas to transport L.J.M. back and forth. The total cost was $1,100, plus gas expenses.

       Next, C.G.J. listed L.J.M.’s current expenses while living at her home. C.G.J. first

discussed the caretaker who came by the house regularly. The caretaker charges $10

per hour, or a flat rate of $100 if she stays overnight. C.G.J. testified that the caretaker

expense varied, but had ranged from $400 to $600 a month. In addition, other expenses

for L.J.M. included: $50 a month for toiletries; $30 a month for diapers; $120 a month

for clothing; $100 a month for gas; and $125 a month for hair expenses. These expenses

total $900.

       C.G.J. also testified about the financial resources given to her due to L.J.M.’s

disabilities. L.J.M. receives $198 a month in Supplemental Security Income benefits and

$1,000 a month in Medicaid benefits.         The Medicaid benefits are for health care

expenses related to L.J.M.’s cardiac problems; sedation procedures for L.J.M.’s heart

problems cost $1,000 per year.

       C.G.J. testified that in addition to the financial expenses, she spends a large

amount of her time taking care of L.J.M. personally.        On cross-examination, C.G.J.

testified that she spends at least sixty hours a week taking care of L.J.M; C.G.J. testified

that this amount of care would cost at least $3,000. During the weekend, C.G.J. testified

that she spends the entire day caring for L.J.M.; appellant provides zero hours of care for

L.J.M. In addition, C.G.J. testified that she tried to contact appellant about providing care
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for L.J.M., but he never returns her calls and does not respond.

B.     Analysis

       Appellant argues that the trial court incorrectly followed the child support guidelines

under Texas Family Code section 154.125 and ordered him to pay twenty percent of his

net resources. See TEX. FAM. CODE ANN. § 154.125 (West, Westlaw through 2013 3d

C.S.) (listing child support guidelines for minor children based on the monthly net

resources of the obligor and number of children).          Appellant argues that this rote

application of section 154.125’s twenty percent calculation shows that the trial court failed

to give special consideration to the four statutorily-required factors under Texas Family

Code section 154.306. We disagree. As set out below, the O.A.G. presented ample

evidence touching on each of the four factors, which supported the trial court’s findings

of fact and conclusions of law. See id. § 154.306; see also TEX. R. CIV. P. 299.

       1.     Existing or Future Needs—Section 154.306(i)

       C.G.J. testified that L.J.M. is permanently mentally and physically disabled and

that her expenses while at the group home totaled around $1,100.00 per month. After

L.J.M. was removed from the group home and returned to live with C.G.J., her expenses

of toiletries ($50 per month), transportation (around $100 per month), clothing (around

$120 per month), and hair (around $125 per month) continued. In addition, if C.G.J.

cannot be at home, she also incurs the expense of a caretaker to provide service at her

home for L.J.M. The caretaker expense is $10 per hour, or $100 if the caretaker stays

overnight. L.J.M.’s current expenses living with C.G.J. total approximately $900 per

month. It is important to note that the total does not include dental expenses or the

estimated value of C.G.J.’s personal care of L.J.M.
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       Here, there is ample evidence that L.J.M. has existing needs and will likely need

substantial care and supervision for the indefinite future due to her mental and physical

disability. See Rose v. Rubenstein, 693 S.W.2d 580, 582–83 (Tex. App.—Houston [14th

Dist.] 1985, no pet.); see also In re J.L.F., No. 04-01-00654-CV, 2002 WL 1625572, at *3

(Tex. App.—San Antonio July 24, 2002, no pet.) (not designated for publication). It is

undisputed that L.J.M. has shown no signs of future improvement with regards to her

mental and physical disability; she will need substantial care and supervision for now and

in the indefinite future.

       2.      Care for the Adult Disabled Child—Section 154.306(ii)

       C.G.J. testified that she has personally provided care for L.J.M. as of November

2012, when L.J.M. began living with her. C.G.J. also testified that appellant has provided

no care for L.J.M. See Rose, 693 S.W.2d at 583 (recognizing courts acknowledge that

parents make different contributions to the child’s welfare); see also In re J.L.F., 2002 WL

1625572, at *13 (noting court heard substantial evidence with regards to the mother’s

personal care for the child, in contrast to the father, who did not provide daily care). In

sum, the evidence shows that C.G.J. incurs $900 per month in expenses for L.J.M. and

provides 100% of the care for L.J.M. From the testimony, there is a large discrepancy

between what C.G.J. provides and what appellant provides.

       3.      Financial Resources of Parents—Section 154.306(iii)

       At the time of the hearing, appellant’s monthly net resources were $5,132.37.

C.G.J. testified that her monthly net resources from the funeral home were $2,000.00.

Here, appellant clearly makes more than C.G.J. In addition, C.G.J. provides all of the

personal care for L.J.M. In her testimony, she explained that her personal caregiving
                                             9
was valued at $3,000 per month.        The combination of appellant’s salary and the

substantial care C.G.J. provides for L.J.M. demonstrate that it is reasonable for appellant

to pay $1,026.97 per month in child support.       See Worford, 801 S.W.2d at 109–10

(holding that the father’s net income along with the need of the child being placed in

autistic treatment center justified the child support increase); see also In re W.M.R., No.

02-11-0083-CV, 2012 WL 5356275, at *14 (Tex. App.—Fort Worth Nov. 1, 2012, no pet.)

(mem. op.) (concluding that evidence showing the father’s savings, salary, and other

financial assets made it reasonable for him to pay a larger amount of support); Krempp

v. Krempp, 590 S.W.2d 229, 231 (Tex. Civ. App.—Fort Worth 1979, no writ) (ordering

father to pay $1,000 in child support after reviewing evidence of father’s ownership of

Mercedes-Benz and an airplane).

       4.     Financial Resources of Adult Disabled Child—Section 154.306(iv)

       C.G.J. testified that L.J.M. receives $198.00 per month in Supplemental Security

Income benefits. In addition, L.J.M. receives $1,000.00 a month in Medicaid benefits for

her heart-related health care expenses. As the $1,000 per month goes to L.J.M.’s heart

procedures, the $198 per month does not cover L.J.M.’s caretaker’s expenses, which

widely vary each month, or L.J.M.'s toiletries, snacks, or transportation. See Rose, 693

S.W.2d at 583 (noting that the child’s $560 per month resources did not cover his

expenses of $862 per month and holding that the child was not self-supporting). The

amount that appellant was ordered to pay was not an unreasonable amount considering

the many set and variable expenses incurred by C.G.J. while living with L.J.M.

       5.     Summary

       Although the trial court’s findings of fact did not expressly touch on all of the
                                            10
foregoing evidence, its findings did encompass each of the four elements required by

section 154.306. See TEX. R. CIV. P. 299. Thus, we cannot conclude that the trial court

failed to consider the four factors. And we are permitted to supply by presumption the

remaining facts supported by the evidence. See TEX. R. CIV. P. 299. We conclude that

there was legally and factually sufficient evidence of the four factors under Texas Family

Code section 154.306 so as to justify the upward modification of appellant’s child support

obligation. See TEX. FAM. CODE ANN. § 154.306. We overrule appellant’s sole issue.

                                    V. CONCLUSION

      We affirm the judgment of the trial court.



                                                              NELDA V. RODRIGUEZ
                                                              Justice

Delivered and filed the
3rd day of July, 2014.




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