Reverse and Remand and Opinion Filed December 12, 2019




                                                                      In The
                                              Court of Appeals
                                       Fifth District of Texas at Dallas
                                                           No. 05-18-00548-CV

                         IN THE INTEREST OF J.P.M., V.M. AND A.M., CHILDREN

                                   On Appeal from the 254th Judicial District Court
                                                Dallas County, Texas
                                        Trial Court Cause No. DF-14-22610

                                             MEMORANDUM OPINION
                                    Before Justices Whitehill, Schenck, and Rosenberg1
                                              Opinion by Justice Rosenberg
             Nury Morrissey appeals certain provisions of the Final Divorce Decree (the Decree) by

which she was ordered to pay Patrick Morrissey child support and medical support. She complains

necessary factual findings were not made separately from the findings in the Decree, the support

obligations calculated by the trial court were incorrect, and the court did not provide a reduction

in child support as each child reached majority. Nury also contends the trial court erred in

admitting the former testimony of unavailable witnesses.

             Patrick concedes error with respect to the trial court’s determination of Nury’s net

resources for calculating her obligation to pay medical support. As an alternative for affirming the

award of medical support, Patrick claims that the minimum wage should have provided the basis

for Nury’s net resources. Otherwise he offers he offers a remittitur and reformation to lessen the



1
    The Hon. Barbara Rosenberg, former Justice of the Court of Appeals for the Fifth District of Texas at Dallas, sitting by assignment.
obligation. Patrick also concedes error for the failure to provide a reduction in child support.

Again he offers remittitur and reformation.

       We overrule Nury’s issues regarding inclusion of the factual findings in the Decree and the

admission of evidence, but sustain her complaints regarding the amount she was ordered to pay in

medical and child support. We also reject Patrick’s voluntary remitter and request that we reform

the Decree, because fact issues exist and require the trial court’s resolution. Accordingly, we

reverse and remand.

                                  FACTUAL BACKGROUND

       Patrick sued Nury for divorce. During trial, Patrick testified about his income and

resources, including lacking health insurance and having no access to private health insurance. He

also testified he had previously been the trustee of Nury’s supplemental social security income

(SSI), and believed she was still receiving $750 per month in SSI. Nury did not appear for trial,

and no other evidence regarding Nury’s current income—or her ability to work—was admitted.

During the trial, the court admitted the transcript of testimony by Patrick, Nury and a third party,

George Bannon, taken at a prior hearing.

       The trial court entered the Decree, and at Nury’s request, also entered separate Findings of

Fact and Conclusions of Law (the Findings of Fact). Pursuant to the Decree, Patrick was

designated as sole managing conservator of the couple’s three minor children and Nury was

ordered to pay Patrick child and medical support calculated by using Nury’s SSI as evidence of

her net resources. Nury was ordered to pay $100 per month for medical support, as additional child

support. The Decree did not include any “step-down” provision reducing Nury’s obligations as

each child reached eighteen or otherwise no longer necessitated her financial. Nury’s appeal

followed.
                                          DISCUSSION

A.     The standard of review in divorce proceedings

       An abuse of discretion standard governs child support issues arising in a divorce

proceeding. Iliff v. Iliff, 335 S.W.3d 74, 78 (Tex. 2011); In the Interest of A.T., No. 05-16-00539,

2017 WL 2351084, at *11 (Tex. App.—Dallas May 31, 2017, no pet.) (mem. op.). Orders

pertaining to health insurance are included within the same standard of review. In Interest of

D.P.B., No. 05-17-00185-CV, 2018 WL 3014628, at *3 (Tex. App.—Dallas June 15, 2018, no

pet.) (mem. op.) (“A trial court’s order pertaining to health insurance for the children will not be

reversed on appeal unless the complaining party can show a clear abuse of discretion.”). The trial

court abuses its discretion when it acts arbitrarily or unreasonably, without reference to guiding

rules or principles. Iliff, 339 S.W.3d at 78 (citing Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex.1985)). A trial court also abuses its discretion by failing to analyze or

apply the law correctly. Id. at 78 (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)).

Under the abuse of discretion standard applied in family law cases, legal and factual sufficiency

challenges are relevant factors in determining whether the trial court abused its discretion, rather

than independent grounds for asserting error. Moore v. Moore, 383 S.W.3d 190, 198 (Tex. App.—

Dallas 2012, pet. denied). In evaluating an abuse of discretion in this context, we first consider

whether the trial court had sufficient evidence upon which to exercise its discretion, then determine

if the trial court erred in the application of its discretion. Moroch v. Collins, 174 S.W.3d 849, 857

(Tex. App.—Dallas 2005, pet. denied).        If some evidence of a “substantive and probative

character” supports the trial court’s decision, no abuse of discretion occurred. In re Marriage of

C.A.S. & D.P.S., 405 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.). We review all evidence

in the light most favorable to the judgment, and assume the fact finder resolved all disputed facts

in favor of its findings, if a reasonable fact finder could do so. Moroch, 174 S.W.3d at 858.
B.     Asserted Errors

       1.      All necessary findings of fact regarding medical and medical insurance
               coverage were included in the Decree.

       In her first issue, Nury complains the trial court abused its discretion in ordering Nury to

pay medical support, because it failed to make factual findings regarding the status or availability

of coverage for the children, or the manner in which health care coverage was to be provided. The

Findings of Fact did not address any aspect of health care coverage. The Decree, on the other

hand, included a finding that neither parent had access to private health insurance at a reasonable

cost, and for each child ordered Patrick to continue coverage under a governmental medical

assistance program or health plan. The Decree further ordered Patrick to continue medical

coverage for each child by continuing to pay all applicable fees and premiums, so long as child

support was payable for that child. Nury was ordered to pay Patrick $100 per month as cash

medical support and additional child support, dates on which those payments were specified, and

those payments were due “until termination or modification of” the child support obligations for

all children encompassed by the Decree.

       Texas courts are required to order child support and medical support in suits affecting the

parent-child relationship.   TEX. FAM. CODE ANN. §§ 154.008, 154.181(a). Medical support

includes medical insurance coverage. TEX. FAM. CODE ANN §§ 154.181(d), 154.182. When the

trial court awards either, section 154.181(d)(1) of the family code requires:

       (d) On rendering a final order the court shall:

            (1) make specific findings with respect to the manner in which health care coverage is
                to be provided for the child, in accordance with the priorities identified under
                Section 154.182; . . .

TEX. FAM. CODE ANN. § 154.181.

       Although findings of fact should be filed as a separate document rather than included in a

decree or judgment, findings that do not conflict with separately filed findings are given effect. In
re U.P., 105 S.W.3d 222, 229 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); Hill v. Hill,

971 S.W.2d 153, 156 (Tex. App.—Amarillo 1998, no pet.). Accordingly, because the Decree

included the necessary factual findings and did not conflict with any Findings of Fact, we overrule

Nury’s first issue.

       2.      Nury’s SSI should have been excluded from her net resources and precluded
               application of the minimum wage presumption

       In her second issue, Nury contends the trial court erred by ordering her to pay more than

nine percent of her annual resources for medical insurance coverage for the children. Relying on

her $750 monthly SSI, Nury asserts nine percent of her annual income was $810 thus allowing a

maximum monthly payment of only $67.50. Patrick concedes error and responds with a cross-

point, contending since “net resources” available for child support obligations exclude SSI, the

trial court should have relied on the wage presumption provided by family code section 154.068.

According to Patrick, application of the presumption yields $1,120.71 as Nury’s monthly net

resources, thereby revealing the trial court’s award of $100 per month in medical insurance

coverage was less than nine percent of Nury’s annual resources and not an abuse of discretion. In

the alternative, Patrick offers a $22.50 monthly remittitur regarding Nury’s medical support

obligation. We conclude the trial court abused its discretion and remand for resolution of factual

issues unresolved by Patrick’s voluntary remittitur.

       In determining child support obligations, including medical support, a trial court must

calculate each party’s “net resources.” TEX. FAM. CODE ANN. § 154.062; In re P.C.S., 320 S.W.3d

525, 532-33 (Tex. App.—Dallas 2010, pet. denied). Although the statute mandates inclusion of

most resources, “supplemental security income” is expressly excluded. Id. at § 154.062(a)(5).

Thus, the trial court abused its discretion in misapplying the law by including Nury’s SSI in

calculating her net resources.
       We also reject Patrick’s invitation to reform the Decree by applying the wage and salary

presumption provided by section 154.068. That statute provides that “in the absence of evidence

of a party’s net resources” courts should presume the party for whom other evidence is lacking

“has income equal to the federal minimum wage for a 40-hour week.” TEX. FAM. CODE ANN.

§ 154.068(a). Here, while the trial court lacked evidence of Nury’s net resources that could be

used for calculation of support, her unrebutted receipt of SSI demonstrated a disability. See, e.g.,

Pickens v. Pickens, 62 S.W.3d 212, 215-16 (Tex. App.—Dallas 2001, pet. denied) (disability

pursuant to which one spouse may become entitled to spousal support may be inferred from the

testimony of lay fact witness); see also 42 U.S.C. § 423(D)(1)(A) (Entitlement to SSI benefits

requires evidence demonstrating “disability,” which means the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months”); see also, e.g., Chang v. Denny, No. 05-17-01457-

CV, 2019 WL 3955765, at *11 (Tex. App.—Dallas Aug. 22, 2019, n.p.h.) (mem.op.) (affirming

admission of evidence that plaintiff was assessed at 100% disability and received social security

benefits as evidence of loss of earning capacity).

       We decline to apply a presumption of income equal to the federal minimum wage for a 40-

hour week the application of which depends on the absence of evidence regarding resources, where

the record indicates instead an inability to earn. See, e.g., Iliff, 339 S.W.3d at 82 (trial court

assessing child support on earnings potential rather than actual earnings should be supported by

the record, as well specific findings); see also In Interest of Hidalgo, 938 S.W.2d 492, 498 (Tex.

App.—Texarkana 1996, no writ) (“In the absence of evidence that an obligor is unemployable, it

is appropriate to apply the presumption that the party has wages equal to the federal minimum

wage for a forty-hour week.”) (emphasis added). Moreover, because Nury’s disability may be
partial, limited to certain functions, or temporary, additional evidence should inform resolution of

Nury’s obligation to pay medical or other support. See In re P.C.S., 320 S.W.3d at 533 (“After

determining the obligor's net resources and the percentage of net resources the obligor would pay

under the guidelines, the trial court then considers whether any additional factors would justify

varying from the guidelines.”); TEX. FAM. CODE ANN. § 154.123 (listing additional factors relevant

to child support assessment). We conclude the presumptive income supplied by family code

section 154.068(a) has no application here. And because the evidence of disability income does

not provide evidence to support the award of medical support, we reject Patrick’s offer of

remittitur. Accordingly, we sustain Nury’s second issue and deny Patrick’s cross-point.

       3.        The trial court erred in failing to include a step-down provision

       Nury contends the trial court abused its discretion in failing to comply with family code

section 154.127, which required the Decree to include provisions terminating support for each

child as they reached maturity, graduated from high school, or was emancipated, and reducing

support for each remaining child accordingly. See TEX. FAM. CODE ANN. § 154.127 (“(a) A child

support order for more than one child shall provide that, on the termination of support for a child,

the level of support for the remaining child or children is in accordance with the child support

guidelines.”).    Patrick concedes error, but offers a remittitur conforming Nury’s support

obligations to the requirements of the statute.

       We agree the trial court abused its discretion in entering a decree without the progressive

reduction required as each of the parties’ three children reach maturity. Deltuva v. Deltuva, 113

S.W.3d 882, 887 (Tex. App.—Dallas 2003, no pet.). Because we also sustain Nury’s second issue

and remand for further proceedings with respect to Nury’s net resources, we decline to reform the

Decree with respect to this error, and instead remand for correction.
       4.      Nury failed to preserve error regarding admission of prior testimony without
               evidence of unavailability

       In her last issue, Nury complains the trial court abused its discretion in admitting the

testimony of George Bannon from a prior hearing. Specifically, she contends Patrick failed to

establish the predicate unavailability required by rule 804. See TEX. R. EVID. 804 (former

testimony not excluded as hearsay where declarant is unavailable as a witness). We are unable to

determine whether admission of the evidence at issue would constitute reversible error. Based

upon our resolution of Nury’s second and third issues and because we remand, however, we need

not address Nury’s fourth issue.

       We overrule Nury’s first and fourth issues and Patrick’s cross issue, but sustain Nury’s

second and third issues. We reverse and remand for further proceedings regarding the trial court's

net resources findings and the portions of the Decree imposing Nury’s child support obligations,

including her medical support obligation.



                                                 /BARBARA ROSENGERG//
                                                 BARBARA ROSENBERG
                                                 JUSTICE, ASSIGNED

180548f.p05
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN THE INTEREST OF J.P.M., V.M. AND                  On Appeal from the 254th Judicial District
 A.M., CHILDREN,                                      Court, Dallas County, Texas
                                                      Trial Court Cause No. DF-14-22610.
 No. 05-18-00548-CV                                   Opinion delivered by Justice Rosenberg.
                                                      Justices Whitehill and Schenck
                                                      participating.


        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's
judgment in which it utilized supplemental social security income to determine Appellant Nury
Morrissey’s net resources and calculate her medical support obligation as child support. We also
REVERSE that portion of the trial court’s judgment which assessed appellant’s child support
obligation with no reduction as each child reached the age of maturity or otherwise negated
appellant’s obligation to provide financial support as provided by TEX. FAM. CODE ANN. §
154.127. We remand to the trial court to calculate appellant’s medical support obligation and
include the step down reduction in accordance with our opinion. In all other respects, the trial
court's judgment is AFFIRMED.

       We order each party to bear their own costs.

Judgment entered this 12th day of December 2019.
