Affirm in part, Reverse in part, and Remand; Opinion Filed March 11, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-01224-CV

                            IN THE INTEREST OF D.T., A CHILD

                       On Appeal from the 330th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DF-13-12945

                              MEMORANDUM OPINION
                         Before Justices Whitehill, Molberg, and Reichek
                                   Opinion by Justice Molberg
       A.T. (Father) appeals the trial court’s determinations of conservatorship of the parties’

minor child (D.T.), and of child support, in a final divorce decree dissolving his marriage to V.V.

(Mother). In two issues, Father asserts the trial court abused its discretion in granting Mother the

exclusive right to designate D.T.’s primary residence and in ordering Father to pay Mother

monthly child support in the amount of $1,450.

       We reverse the portion of the trial court’s final divorce decree pertaining to Father’s

monthly child support obligations, and remand to the trial court for further proceedings consistent

with this opinion. In all other respects, we affirm the final divorce decree.

                                         BACKGROUND

       Father and Mother were married on or about September 29, 2009. D.T. was born on July

30, 2010. The parties ceased living together on or about July 5, 2013. Mother filed an Original

Petition for divorce on July 9, 2013, and a First Amended Original Petition for Divorce on March
27, 2015 (petition). Father filed an Original Counter-Petition for Divorce on July 19, 2013

(counter-petition). Mother sought sole managing conservatorship of D.T., “with all the rights and

duties of a parent sole managing conservator,” which includes the exclusive right to designate the

child’s primary residence. See TEX. FAM. CODE ANN. § 153.132(1). Father requested the trial

court to appoint the parties joint managing conservators, and grant him the exclusive right to

designate D.T.’s primary residence. Both parties requested that the other party be ordered to make

child support payments.

         Mother’s petition alleged Father had “a history of committing family violence,” accused

Father of “cruel treatment,” and asked the trial court “to deny [Father] access to [D.T.].”

Alternatively, Mother requested the trial court to order supervised visitation and require Father to

attend a “battering intervention and prevention program.” In affidavits attached to her petition,

Mother testified that Father filed a false report with Child Protective Services, accusing her of

mistreating D.T. and her son from a previous marriage. Mother also testified by affidavit that she

believed Father would remove D.T. from the United States.1 Father’s counter-petition accused

Mother of “cruel treatment.” Father requested the trial court to order a psychological evaluation

of Mother, and order the parties to attend a parent education and family stabilization course.

         The parties’ inability to peaceably co-parent D.T. resulted in the trial court and its associate

judge issuing various orders, ranging from requiring the parties to attend parenting classes, to

ordering that Mother be permitted to attend D.T.’s birthday party. In temporary orders dated

November 11, 2013, the trial court, among other things:

                ordered Dallas County Family Court Services to prepare a “social study
                 into the circumstances and condition of [D.T.]” and Father’s and
                 Mother’s respective homes;


    1
       The Dallas County Family District Court Standing Order, applicable to every divorce suit and every suit
affecting the parent-child relationship, prohibits the parties from removing any child the subject of the case from the
State of Texas.
                                                         –2–
                 ordered a psychological evaluation of Father and of Mother; and

                 ordered Father and Mother to complete a parenting education and family
                  stabilization course.

In its November 2013 temporary orders, the trial court found that “good cause exists for no child

support to be ordered at this time,” but ordered both parties to provide medical support for D.T.

In a report dated August 24, 2015, the associate judge ordered Father and Mother to attend a

parenting class; appointed Sandra Benson as D.T.’s counselor2; and ordered that D.T. “must sleep

in her own bed at Father’s residence.”3

          In September 2013 and October 2014, the trial court ordered Dr. Donna Milburn, a clinical

and forensic psychologist, to conduct psychological evaluations on Father and Mother, and prepare

reports summarizing her findings. Dr. Milburn produced her first report on January 28, 2014, and

her second on August 29, 2015. Both were admitted into evidence at trial. Pursuant to court

orders, Dr. Catherine Collins, a Dallas County Family Court Services counselor, prepared two

child custody evaluations of D.T.4 Portions of Dr. Collins’ reports were read into the record at

trial, a summary of the reports was admitted as evidence, and the trial court “[took] judicial notice

of the filing of [Dr. Collins’] social study in the [trial court’s] record on July 22, 2014.”

Additionally, Dr. Milburn’s August 2015 report addressed and summarized portions of Dr.

Collins’ July 2014 report.

          In temporary orders dated February 24, 2016, the trial court ordered the parties to attend a

“Conflict Resolution and Parallel Parenting Program” conducted by Dr. Linda Threats, a court-

appointed psychotherapist and parent facilitator. An associate judge’s report dated July 11, 2016,


    2
        Benson was also a counselor for Mother’s son by a previous marriage.
    3
     Dr. Donna Milburn’s January 2014 psychological evaluation report, see infra, noted that Father “sleeps with”
D.T. At a temporary orders hearing, Benson testified D.T. said “she sleeps with [Father]” in the same bed .
    4
     The trial transcript and Dr. Milburn’s August 2015 psychological evaluation report indicate Dr. Collins filed
two child custody evaluations, on July 22, 2014, and on December 30, 2015. Father attached a copy of Dr. Collins’
December 2015 report to his brief on appeal.
                                                        –3–
ordered that Mother “have access” to D.T. from noon to 6:30 p.m. on D.T.’s birthday, that “Mother

get [D.T.] ready for the party,” and that Mother “can attend [D.T.’s] birthday party.”

        The trial court conducted a bench trial in February 2017. The parties presented evidence

on, among other things, conservatorship and child support. The trial court heard the testimony of

Mother, Father, Dr. Milburn, and Dr. Threats, among others. The evidence at trial included

psychological evaluations, social study reports, and counseling reports regarding D.T., Father, and

Mother, prepared by Dr. Milburn, Dr. Collins, and Benson. Portions of Dr. Milburn’s, Dr. Collins’,

and Benson’s reports were read into the record at trial. Transcripts of temporary orders hearings

in August 2013 and November 2015 were introduced into evidence, and included the testimony of

Benson, Samina Yasmin, D.T.’s former babysitter, and Jackie Day, Mother’s former neighbor.

Portions of Benson’s, Yasmin’s and Day’s testimony were read into the record.

        At trial, Mother testified that both during the marriage and after the parties separated,

Father yelled at her and called her “sister fucker, motherfucker, [and] bitch.” According to Mother,

“[Father] called [her] bitch so many times that [D.T.] started calling [her] bitch. [D.T.] thought

that [was Mother’s] name.” Mother told the trial court that Father “engaged in pushing and pulling

during the marriage.” According to Mother, Father was not involved in D.T.’s extracurricular

activities.

        In his trial testimony, Father admitted he had called Mother a “sister fucker” in the past,

“yelled at her and cursed at her.” Father testified that Mother called him “the Indian version of

fucker,” “bait[ed him] into losing [his] temper,” and allowed D.T. to go to school when she was

sick. According to Father, Mother does not “wan[t] what’s best for [D.T.].” However, Father also

confirmed, “[Mother] is a good mom.”

        Dr. Milburn testified that she recommended in both her January 2014 and August 2015

psychological evaluation reports that Father be appointed the primary possessory parent.

                                                –4–
According to Dr. Milburn, D.T. appeared to have a stronger bond with Father, and “seemed . . .

joyful and happy” when she was playing with Father. In contrast, D.T. “seemed angry” while

playing with Mother. Dr. Milburn also believed the information Father provided “seemed to be

more consistent” with other information and evidence she obtained. Conversely, the information

Mother provided “changed quite a bit [d]epending on what sort of story she was telling,” and some

things Mother said “turned out to not be accurate.” Dr. Milburn’s impression of Mother was “that

she would say and do whatever she needed to, to be able to achieve her goal of having [Dr.

Milburn] recommend that she be the primary custodial parent.”

       Dr. Milburn testified that in her first evaluation, when D.T. was two-and-one-half years

old, Father admitted he “was sleeping with [D.T.] in the same bed.” Dr. Milburn knew Father

“was involved in abusing another female in India.” Dr. Milburn told the trial court that Mother

made an allegation of sexual abuse by Father, but the “information [she provided] called [into]

question . . . whether or not that was an accurate allegation.” The trial court questioned Dr. Milburn

about the sexual abuse allegations. According to Dr. Milburn, Mother alleged that D.T. was

“taking a shower with [Father], that he masturbated in front of [D.T.] and that he ejaculated in

front of [D.T.].” D.T. told Dr. Milburn she had never taken a shower with Father.

       Dr. Threats testified Father tended to be “compulsive,” a perfectionist, “controlling, yet

indulging,” could be “unbending in some areas,” and tended to believe “there’s an absolute correct

solution for problems.” According to Dr. Threats, after working with Father for “a period of time,”

“he was able to integrate new learning based on experiences.” While Dr. Threats considered Father

to be “hardworking, duty bound, [and] dependable,” he also could be stubborn, and have

“difficulty managing his anger at times.” Dr. Threats testified Mother “respond[ed] well to

positive reinforcement,” tended to be “pleasing and loyal to authority figures,” “was able to

integrate new learning, based on experience,” and was “achievement oriented.” According to Dr.

                                                 –5–
Threats, while Mother tended to “eagerly respond to new ideas and suggestions [from] others” and

was “friendly and sociable,” she also “may use guilt and manipulation at times to get what she

wants.”

       A transcript of Benson’s testimony from the November 2015 temporary orders hearing was

admitted into evidence at trial, and portions of her testimony were read into the record. With

respect to her counseling sessions with D.T. and Mother’s son, Benson’s testimony at the

temporary orders hearing included the following:

                 Mother’s son witnessed Father hit and kick Mother, and pull Mother’s
                  hair.

                 Mother’s son was afraid of Father.

                 Benson was “concerned about family violence that went on between
                  [Father and Mother] in the household.”

                 Both D.T. and Mother’s son told Benson about family violence, and
                  they were “concerned about what was happening to their mother.”

                 D.T. told Benson “she sleeps with [Father],” and Benson considered
                  it “inappropriate” for D.T. to sleep with Father.

Benson’s written psychological evaluation of Mother’s son was admitted into evidence at trial.

Benson’s report stated:

                 Mother’s son “has seen his mother and his sister abused.”

                 Father “hit him on his head and on his buttock every day, had kicked
                  him, and called him bad names in Hindi. These allegations have been
                  supported by videos and transcripts.”

                 Mother’s son “was fearful when [Father] moved into the same
                  apartment complex as [Mother].”

                 “[Mother] has been involved in her children’s lives by providing . . .
                  playdates, family nights, church, and trips together.”

       A summary of Dr. Collins’ child custody evaluation reports was admitted into evidence at

trial, and portions of the reports were read into the record. Dr. Collins’ reports noted strengths and


                                                 –6–
areas of concern for both Father’s and Mother’s parenting of D.T. Dr. Collins’ observations,

conclusions, and recommendations included the following:

                 “There is some evidence that the father may have physically abused
                  the mother. It is likely that he, in the least, was verbally abusive and
                  may have engaged in pushing or pulling.”

                 “Due to the mother’s seeming weaker relationship [with D.T., D.T.]
                  would probably be happiest if the mother had extended standard
                  possession. The father appears more attentive and more playful.”

                 “The greatest concern about [Father] is the [a]lienating remarks he
                  will make to [D.T.] about [Mother]. As this concern was in the first
                  social study and the same behavior occurred in the update[d]
                  observation, it appears [Father] will have a great deal of difficulty
                  correcting it.”

                 “[I]t is difficult to recommend the father have more time with [D.T.]
                  because it is very likely the father will strongly alienate [D.T.] from
                  the mother. . . . He will alarm [D.T.] to false dangers that the mother
                  poses, increase her anxiety and anger in the mother’s care, and lead
                  her to reject visitation. He may also over-indulge her to develop a
                  preference for him.”

Dr. Collins’ report stated she was “inconclusive regarding whether family violence has occurred,”

and would “[defer] to the jury to determine the mother’s witnesses’ credibility with cross

examination. While there is some doubt about credibility, multiple witnesses lend some weight.”

       A transcript of Yasmin’s testimony from the August 2013 temporary orders hearing was

admitted into evidence at trial, and portions of her testimony were read into the record. Yasmin

was D.T.’s babysitter from February 2011 to October 2012. At the temporary orders hearing,

Yasmin testified she cared for D.T. from 8 a.m., when Mother left her home for work, until 5 p.m.,

when Mother returned home from work. Although Father was at home for a portion of the time

Yasmin cared for D.T., he did not feed, bathe, or otherwise care for D.T. Yasmin saw Father slap

D.T. on the face once, when D.T. did not obey him. Yasmin considered Mother to be a “good”

parent, but not Father. Yasmin observed bruises on Mother “[q]uite a few times.”



                                                –7–
         A transcript of Day’s testimony from the August 2013 temporary orders hearing was

admitted into evidence at trial, and portions of her testimony were read into the record. At the

temporary orders hearing, Day testified she observed bruises on Mother’s face and neck in August

2012 and February 2013. According to Day, Mother said she got an abortion because Father “hit

her in the stomach.” Day observed Father yelling at Mother on “two or three” occasions. Day

said Father was a “good father . . . some of the time,” and Mother was a “good mother all of the

time.”

         At trial, there was limited evidence with respect to Father’s income. Mother testified that,

according to “the last income tax statement,” Father made $91,000 a year. Father did not testify

or otherwise provide evidence of his income at trial. However, at the August 2013 temporary

orders hearing, Father testified he “ma[d]e . . . [$]74,500,” but also testified that he and Mother

were “making the same amount of money . . . between [$]100- and 150,000.” Father did not

provide a copy of his pay stub at the hearing. Dr. Collins’ December 2015 child custody evaluation

report included a form completed by Father on which he listed his employment history and stated

his gross monthly income “From Employment” as $3,718.75 and net monthly income “From

Employment” as $2,704.92, but noted “Present Employer details not provided.”

         Prior to announcing its judgment, the trial court told the parties it had read “the entirety of

the file” and “[e]very bit of that social study that was before this Court.” The trial court stated the

orders that were “put in place” were for the child’s best interest. Addressing Father, the trial court

noted, “you think that [Mother] is a good mother because you said she was.” The trial court stated

that although “there [are] some issues with her credibility,” there were also “too many instances

where someone, other than mom, is talking about some abuse,” and it “wish[ed it] had heard

[Father] say . . . that did not happen.” The trial court recalled Dr. Threat’s testimony that Father

could be “unbending,” “difficult,” and believed in “an absolute correct solution,” and noted Dr.

                                                  –8–
Threat’s testimony was consistent with the findings in the “social study.” Reminding Father that

he no longer shared a home with Mother, the trial court told Father that, while it believed he loved

D.T., he “can’t control what happens in [Mother’s] home.”

       The trial court granted the divorce and dissolved the parties’ marriage on the ground of

insupportability. Relevant to this appeal, the divorce decree appointed Mother and Father joint

managing conservators of D.T. Mother was granted the exclusive right to designate D.T.’s primary

residence within Dallas or contiguous counties. Father was ordered to pay Mother monthly child

support in the amount of $1,450. Mother was ordered to provide and pay for D.T.’s health

insurance. Father filed a motion for new trial, which was overruled by operation of law. The

parties did not request findings of fact and conclusions of law. This appeal followed.

                                   STANDARD OF REVIEW

       Father challenges the sufficiency of the evidence to support the trial court’s order granting

Mother the exclusive right to designate D.T.’s primary residence, and ordering Father to pay

Mother monthly child support in the amount of $1,450. We review a trial court’s decision

regarding these issues under an abuse of discretion standard. See Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990) (per curiam) (child support); Gillespie v. Gillespie, 644 S.W.2d 449, 451

(Tex. 1982) (conservatorship, control, possession, and access); In re K.L.W., 301 S.W.3d 423, 424

(Tex. App.—Dallas 2009, no pet.) (custody, control, possession, and visitation). The trial court

has wide discretion in determining what is in the best interest of the child, and we will not disturb

the trial court’s order absent an abuse of discretion. In re E.R.C., 496 S.W.3d 270, 283–84 (Tex.

App.—Texarkana 2016, pet. denied). A trial court abuses its discretion if it acts without reference

to any guiding rules or principles. Worford, 801 S.W.2d at 109; In re A.B.P., 291 S.W.3d 91, 95

(Tex. App.—Dallas 2009, no pet.); Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.—Austin

2014, no pet.). When reviewing for an abuse of discretion, “legal and factual sufficiency of the


                                                –9–
evidence are not independent grounds for asserting error but are relevant factors in determining

whether the trial court abused its discretion.” Coburn, 433 S.W.3d at 823; see also E.T.-M. v.

Texas Dep’t of Fam. & Protective Services, No. 03-18-000622-CV, 2019 WL 988222, at *2 (Tex.

App.—Austin Mar. 1, 2019, n.p.h.).

       In considering whether the trial court abused its discretion, we determine: (1) whether

there was sufficient evidence upon which to exercise its discretion, and if there was, (2) whether

the application of its discretion was erroneous. Vardiolos v. Vardiolos, 219 S.W.3d 920, 921 (Tex.

App.—Dallas 2007, no pet.); Coburn, 433 S.W.3d at 823. We consider only the evidence most

favorable to the trial court’s ruling and will uphold its judgment on any legal theory supported by

the evidence. Coburn, 433 S.W.3d at 823. A trial court does not abuse its discretion when it

makes a decision based on conflicting evidence, Bailey v. Rodriguez, 351 S.W.3d 424, 426 (Tex.

App.—El Paso 2011, no pet.); In re M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010,

no pet.), or when some substantive and probative evidence supports its decision, In re C.C.J., 244

S.W.3d 911, 917 (Tex. App.—Dallas 2008, no pet.); Coburn, 433 S.W.3d at 823. Further, in a

bench trial, the trial court is the sole judge of the witnesses’ credibility and the weight to be given

to their testimony. In re E.R.C., 496 S.W.3d at 284. We, therefore, defer to the trial court’s

judgment with respect to factual resolutions that may have been affected by the trial court’s

credibility determinations. Id.

       In a bench trial where the record contains no findings of fact and conclusions of law, all

necessary findings of fact to support the trial court’s judgment are implied. Worford, 801 S.W.2d

at 109; Burns v. Burns, 116 S.W.3d 916, 920 (Tex. App.—Dallas 2003, no pet.). “[E]very

reasonable inference and intendment supported by the record will be drawn in favor of the trial

court’s judgment.” Burns, 116 S.W.3d at 920 (quoting Black v. Dallas Cty. Child Welfare Unit,

835 S.W.2d 626, 630 (Tex. 1992)). We will uphold the judgment on any legal theory that finds

                                                –10–
support in the record. Weisfield v. Tex. Land. Fin. Co., 162 S.W.3d 379, 381 (Tex. App.—Dallas

2005, no pet.); Burns, 116 S.W.3d at 920 (“In a nonjury trial ‘every reasonable inference and

intendment supported by the record will be drawn in favor of the trial court’s judgment.’”) (quoting

Black, 835 S.W.2d at 630)

                  RIGHT TO ESTABLISH CHILD’S PRIMARY RESIDENCE

        In his first issue, Father contends the trial court abused its discretion by appointing Mother

joint managing conservator with the exclusive right to establish D.T.’s primary residence.

        “The best interest of the child shall always be the primary consideration of the court in

determining the issues of conservatorship and possession of and access to the child.” TEX. FAM.

CODE ANN. § 153.002. The trial court is vested with broad discretion to determine which

conservator will have the exclusive right to establish the child’s primary residence, so as to

effectuate the best interest of the child. In re K.L.W., 301 S.W.3d at 428; see also Pena v. Pena, 8

S.W.3d 639, 639 (Tex. 1999) (per curiam) (“the trial court is vested with wide discretion in

determining custody issues”). The trial court’s judgment will be disturbed only where the record

as a whole shows that the trial court abused its discretion. Gillespie, 644 S.W.2d at 451; In re

K.L.W., 301 S.W.3d at 424.

        Father claims the trial court abused its discretion by designating Mother “as [D.T.’s]

Primary Managing Conservator”5 because psychological evaluations by Dr. Milburn and Dr.

Collins indicated Father was best suited to have “primary possession” of D.T. The evidence shows

that both Father and Mother contributed to the problems they had co-parenting D.T., and the

witnesses presented conflicting evidence. Although Dr. Milburn recommended that Father and

Mother be joint managing conservators, with Father having “primary possession” of D.T, her


    5
      The trial court did not designate Mother as D.T.’s “Primary Managing Conservator.” Rather, Father and Mother
were appointed joint managing conservators, with Mother having the exclusive right to establish D.T.’s primary
residence within Dallas and contiguous counties.
                                                      –11–
psychological evaluations of Father observed that he “had a history of misrepresenting his past

work on a resume to gain employment and there is a filed legal report from a first wife in India

claiming that he was physically violent with her.” Dr. Milburn also opined that Father “tend[ed]

to be outspoken about what he believes and may tend to be emotionally reactive to situations that

do not go as he wants”; Father “may tend to do or say whatever he thinks will gain him the outcome

he desires”; and Father “may have difficulty managing his anger and at times can become

overwhelmed and have an outburst of anger.” Dr. Milburn opined that Mother “seem[ed] to

prioritiz[e] her own wants and emotions above those of others”; Mother “ha[d] some fluctuations

in mood that may interfere with her ability to focus at times”; and Mother “appear[ed] to have

some difficulty managing frustration and anger.” Dr. Milburn, however, also observed that Mother

is “an emotionally sensitive individual most of the time and her behavior remained consistent

throughout the evaluation.”

       Dr. Collins’ report expressed deep concern that Father “has tried to damage” D.T.’s

relationship with Mother, and made statements to D.T. to alienate her from Mother. Dr. Collins

believed Father would “have a great deal of difficulty correcting” this behavior. Even during Dr.

Collins’ “family observations, [Father] portrayed [Mother] negatively in D.T.’s presence, instilled

anxiety, and urged her to correct [Mother].” Dr. Collins did not recommend that Father have

primary possession of D.T., as Father suggests in his brief on appeal. Rather, Dr. Collins stated

D.T. “would probably be happiest” if Mother had extended standard visitation, but “it is difficult

to recommend [that Father] have more time with [D.T.] because it is very likely [Father] will

strongly alienate [D.T.] from [Mother].”

       There was also conflicting evidence of family violence by Father. Benson’s testimony and

report reflected that D.T. and Mother’s son had witnessed acts of violence by Father against

Mother, and Father had hit and kicked Mother’s son. Mother testified Father pushed and pulled

                                              –12–
her during the marriage, and Father admitted he had yelled and cursed at Mother and called her a

“sisterfucker.” Yasmin and Day testified they had seen bruises on Mother on multiple occasions,

and Yasmin testified she saw Father slap D.T.’s face. Dr. Milburn, however, testified that in the

course of her second evaluation, “the information that [she] looked at called [into] question

whether or not [the accusation of sexual abuse] was an accurate allegation,” and Dr. Collins was

also “inconclusive regarding whether family violence had occurred.”

        During the three-and-one-half year pendency of the parties’ divorce, the trial court6 and

court-appointed psychologists, counselors and facilitators had ample opportunity to observe and

evaluate the parties’ personalities, weigh the credibility of witnesses, assess D.T.’s physical,

mental and emotional well-being, and make an informed decision as to the conservatorship

arrangement that would serve D.T.’s best interest. The trial court made clear to the parties that its

decision regarding the parties’ respective conservatorship rights and duties were based on its

concern for effectuating D.T.’s best interest.

        As the sole judge of the credibility of the witnesses, it was the role of the trial court to

resolve conflicting witness testimony. Considering the entirety of the record in this case, we

cannot conclude the trial court abused its discretion in resolving the conflicting evidence in

Mother’s favor and determining that it was in D.T.’s best interest to grant Mother the exclusive

right to designate D.T.’s primary residence. We resolve Father’s first issue against him.

                                             CHILD SUPPORT

        In his second issue, Father complains the trial court abused its discretion in ordering him

to pay $1,450 per month in child support, because there is no evidence that the amount was

calculated based on his net resources. We review a trial court’s determination of child support



    6
      Based on a recusal, on September 23, 2015, this case was transferred from the 254th Judicial District Court of
Dallas to the 330th Judicial District Court of Dallas.
                                                       –13–
under the abuse of discretion standard set forth, supra. Worford, 801 S.W.2d at 109; In re B.Q.T.,

No. 05-14-00480-CV, 2016 WL 861633, at *1 (Tex. App.—Dallas Mar. 7, 2016, no pet.) (mem.

op.). Unless the complaining party demonstrates a clear abuse of discretion, we will not disturb a

trial court’s order on child support. Worford, 801 S.W.2d at 109.

        The Texas Family Code provides that when, as here, the parties have one child and the

obligor’s monthly net resources are not greater than $7,500 a month, the trial court shall

presumptively base its child support award on twenty percent of the obligor’s net resources. TEX.

FAM. CODE ANN. § 154.125(b). Under the family code, net resources include wages, self-

employment income, net rental income, and “all other income actually being received, including

severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security

benefits . . . .” Id. § 154.062(b). In calculating net resources, the trial court must deduct any social

security taxes, federal and state income taxes, and expenses for, among other things, cash medical

support for the child ordered by the court. Id. § 154.062(d).

        The statutory guidelines are “presumed to be reasonable,” and an order of child support

conforming to the guidelines is presumed to be in the best interest of the child. Id. § 154.122.

However, a trial court may determine that application of the guidelines would be unjust or

inappropriate under the circumstances, and order child support in an amount other than that

established by the guidelines if “the evidence rebuts the presumption that application of the

guidelines is in the best interest of the child and justifies a variance from the guidelines.” Id.

§§ 54.122, 154.123. In determining whether application of the guidelines would be unjust or

inappropriate under the circumstances of a particular case, the family code further provides that

the trial court “shall consider,” among other things, the age and needs of the child, the ability of

the parents to contribute to the support of the child, the financial resources available for the support

of the child, and “any other reason consistent with the best interest of the child, taking into

                                                 –14–
consideration the circumstances of the parents.” Id. § 154.123(a), (b). If a trial court deviates

from the statutory guidelines, the trial court must make findings to support its variance from

application of the guidelines. Id. §154.130. Specifically, the trial court must set forth the monthly

net resources of the obligor, the monthly net resources of the obligee,7 the percentage applied to

the obligor’s net resources for child support, and the specific reasons the trial court deviated from

the statutory guidelines. Id. §154.130(b).

           Here, the evidence in the record regarding Father’s net resources is conflicting and

imprecise.8 At the August 2013 temporary orders hearing, Father testified both that his income

was $74,500 and that he and Mother made “the same amount of money . . . between [$]100- and

150,000.” At trial, Mother testified that, based on “the last income tax statement,” Father “make[s]

. . . $91,000 a year.”

           Mother’s Requested Relief, which was signed by her counsel and introduced into evidence

at trial, asked the trial court to order Father to pay child support and cash medical support of

$1,446.83 per month. According to Mother, this amount was “based on the last year [sic] pay

stub” from “several months” past that Father provided.9 Mother’s Requested Relief included the

method she used to calculate the requested monthly child support as follows:

              $8,576.38 gross monthly wages
              $6,340.57 net resources
              x 20% $1,268.00 Monthly Child Support

              [Mother] and her children $4,351 - $2,205 ([Mother] only)
              $2,146 for two children, divided by half, $1,073, Divide by 12


    7
      The findings specified by section 154.130(b)(2)—the net resources of the oblige—are only required if evidence
of the monthly net resources of the obligee has been offered. Id. § 154.130(c).
     8
       The family code provides, “[i]n the absence of evidence of a party’s resources, as defined by Section 154.062(b),
the court shall presume that the party has income equal to the federal minimum wage for a 40-hour week to which the
support guidelines may be applied.” TEX. FAM. CODE ANN. § 154.068(a). In the present case, the trial court was not
faced with an “absence” of evidence of Father’s net resources, and section 154.068 does not apply.
    9
        We did not locate an income tax return or a pay stub for Father in the record.


                                                          –15–
            $89.42 and $14.23 Medical and Dental for [D.T.]

         However, gross monthly wages in the amount of $8,576.38 equates to gross annual wages

of $102,916.56, not $91,000. Moreover, even assuming the amount of Father’s monthly net

resources was $6,340.57, as stated in Mother’s Requested Relief, monthly child support due under

section 154.125 would be $1,268.11,10 the amount reflected in Mother’s Requested Relief.

         Although Mother requested the trial court order Father to pay $1,446.83 in monthly child

and medical support, the trial court ordered Father to pay $1,450 in monthly child support and

ordered Mother to provide and pay for D.T.’s medical insurance. Accordingly, the amount of child

support that Father was ordered to pay does not appear to be based either on the evidence or on

Mother’s request. Moreover, assuming the trial court deviated from the guidelines governing child

support awards set forth in section 154.125 of the family code, it did not make the statutorily

mandated findings under section 154.130 of the family code.

         We conclude that, on this record, the trial court abused its discretion in ordering Father to

pay monthly child support in the amount of $1,450. We reverse the trial court’s order requiring

Father to pay Mother monthly child support in the amount of $1,450, and remand that portion of

the trial court’s final divorce decree for further proceedings consistent with this opinion. In all

other respects, the trial court’s judgment is affirmed.




                                                         /Ken Molberg/
                                                         KEN MOLBERG
                                                         JUSTICE

171224F.P05



    10
      Under section 154.125, Father must pay child support in the amount of twenty percent of his net resources.
TEX. FAM. CODE ANN. § 154.125.
                                                     –16–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN THE INTEREST OF D.T., A CHILD,                   On Appeal from the 330th Judicial District
                                                     Court, Dallas County, Texas,
 No. 05-17-01224-CV                                  Trial Court Cause No. DF-13-12945.
                                                     Opinion delivered by Justice Molberg.
                                                     Justices Whitehill and Reichek
                                                     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 ordering appellant Aman Tara to
pay monthly child support to appellee Vandna Vaid in the amount of $1,450. We REMAND the
issue of child support to the trial court for further proceedings consistent with this opinion.

       In all other respects, the trial court's judgment is AFFIRMED.

       It is ORDERED that the parties bear their own costs of appeal.


Judgment entered this 11th day of March 2019.




                                              –17–
