

 
 





NUMBER 13-08-00535-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 

MICHELLE ROXANNE FOSTER,						Appellant,

v.


ERNEST ALEJANDRE,							Appellee.
 
On appeal from the 105th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION


Before Justices Yañez, Rodriguez, and Benavides 

Memorandum Opinion by Justice Rodriguez


	Appellant Michelle Roxanne Foster appeals the order of the trial court directing
appellee Ernest Alejandre to pay monthly child support. (1)  By two issues, Foster complains
that the trial court erred in (1) its calculation of Alejandre's net income because the court
deducted from Alejandre's gross income self-employment social security and federal
income taxes, despite Alejandre's admission that he paid neither, and (2) in using the
Office of Attorney General Tax Charts to determine Alejandre's net available resources. 
We affirm.
BACKGROUND

	On September 5, 2007, the Office of the Attorney General filed a motion to modify
child support and confirm support arrearage on behalf of the children of Foster and
Alejandre.  An associate judge held a hearing on the motion on January 24, 2008.  On
January 29, 2008, in a notice of de novo hearing request to the district court, Foster
challenged the findings and conclusions of the associate judge regarding Alejandre's gross
and net income and calculation of child support.  The district court held two hearings on
Foster's de novo appeal.  
	On July 2, 2008, the court entered the following findings of fact and conclusions of
law:  (1) Alejandre's gross monthly income is $3,000.00; (2) based on chapter 154 of the
family code and the Texas Attorney General's tax chart for self-employed persons,
Alejandre's net monthly income is $2,462.48; and (3) even though Alejandre had testified
that he had not paid income taxes, social security taxes, or Medicaid taxes, he was entitled
to a credit for those items in computing his net monthly income.  On August 19, 2008, the
court entered an order modifying child support; it set Alejandre's net monthly income at
$2,462.48 and ordered Alejandre to pay Foster $396.06 per month in child support.  This
appeal ensued.


STANDARD OF REVIEW & APPLICABLE LAW

	We review a trial court's order regarding child support for abuse of discretion.  Office
of the Att'y Gen. v. Buhrle, 210 S.W.3d 714, 717 (Tex. App.-Corpus Christi 2006, pet.
denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)).  We will not
overturn the order unless the trial court acted arbitrarily or unreasonably or "without
reference to any guiding rules or principles."  Id.  If a trial court fails to "analyze or apply
the law correctly," it has abused its discretion.  Id.
	Monthly child support obligations are calculated based on the obligor's net available
resources.  See Tex. Fam. Code Ann. § 154.061 (Vernon 2008); Wilemon v. Wilemon, 930
S.W.2d 290, 293 (Tex. App.-Waco 1996, no writ).  The trial "court shall deduct the
following items from resources to determine the net resources available for child support: 
(1) social security taxes; [and] (2) federal income tax based on the tax rate for a single
person claiming one personal exemption and the standard deduction . . . ."    Tex. Fam.
Code Ann. § 154.062(d)(1)-(2) (Vernon 2008) (emphasis added).  In determining the
correct deductions to be made from a self-employed obligor's gross resources, the trial
court may consult the Office of the Attorney General Tax Charts, promulgated pursuant
to section 154.061 of the family code.  See id. at § 154.061(b).
DISCUSSION

	By two issues, Foster challenges the trial court's child support order because the
court deducted Alejandre's self-employment social security and federal income taxes from
his gross income and used the Office of the Attorney General Tax Charts to determine
Alejandre's net available resources.  Foster contends that, because Alejandre admitted that
he did not pay those taxes, it was improper for the court to deduct them from the gross
income amount in arriving at the net income used for the child support calculation.  
	Foster provides no authority, and we find none, for her argument that section
154.062(d) does not apply when the obligor does not pay his taxes.  Rather, the mandate
of section 154.062(d) is quite clear.  Section 154.062(d) directs the trial court to deduct
both social security and federal income taxes from the obligor's resources in determining
the net available resources for child support.  See Tex. Fam. Code Ann. § 154.062(d)(1)-(2)
(stating that the court "shall" deduct social security and federal income taxes from the
obligor's gross resources).    The statute makes no exception for obligors who do not pay
their taxes.  Thus, the trial court here properly applied the law when it deducted social
security and federal income taxes from Alejandre's gross monthly income.  See In re
Grossnickle, 115 S.W.3d 238, 249 (Tex. App.-Texarkana 2003, no pet.) (strictly applying
section 154.062(d) in concluding that the trial court had failed to deduct social security
taxes from the obligor's gross income).  Moreover, the court was acting according to
guiding rules and principles when it used the Office of the Attorney General Tax Charts to
calculate Alejandre's net monthly income.  See Tex. Fam. Code Ann. § 154.061.  We,
therefore, cannot conclude that the trial court abused its discretion, and we overrule
Foster's first and second issues.  See Buhrle, 210 S.W.3d at 717.
CONCLUSION

	The order of the trial court is affirmed.
 
								NELDA V. RODRIGUEZ
								Justice

Memorandum Opinion delivered and
filed this 30th day of July, 2009.

1.   This case was transferred from the 105th District Court to the 94th District Court of Nueces County,
Texas.  The style of all of the pleadings and other court documents state that the case was situated in the
105th Court.  However, the hearings were held before District Judge Bobby Galvan in the 94th Court, and
Judge Galvan entered both the findings of fact and conclusions of law and the order modifying child support.

