Opinion filed October 28, 2010


                                                          In The


    Eleventh Court of Appeals
                                                       __________

                                               No. 11-09-00114-CV
                                                   __________

              IN THE INTEREST OF S.M., S.M., AND S.M., CHILDREN


                                   On Appeal from the 259th District Court

                                                 Jones County, Texas

                                           Trial Court Cause No. 021733


                                    MEMORANDUM OPINION
         Chad William Murray appeals from the trial court’s order in a suit affecting the parent-
child relationship. We reverse and remand in part and affirm in part.
         Murray and Karen Chavana are the parents of SM, SM, and SM.1 Murray and Chavana
were divorced in 2004. In the divorce decree, the trial court appointed Murray and Chavana joint
managing conservators of the children; Chavana had the right to designate the primary residence
of all three children. The trial court ordered Murray to pay child support of $900 per month.
         In 2005, the trial court entered an agreed order of modification. By agreement, the trial
court appointed Murray as the parent with the right to determine the primary residence of the
oldest child. Chavana had the right to determine the primary residence of the other two children.
The trial court also ordered that Murray pay Chavana child support of $670.29 per month and
that Chavana pay child support to Murray of $205.80 per month; Murray was authorized to offset
the amount Chavana owed him and to pay the net to her.
         In 2008, the parties were yet again in the trial court. At this time, the oldest child no


         1
           Because all three children have initials S.M., we will refer to them as S.M.1, S.M.2, and S.M.3. At the time the order
was entered, S.M.1 was seventeen years old, S.M.2 was sixteen years old, and S.M.3 was thirteen years old.
longer lived with Murray but, rather, had lived with Chavana since April 2008. The trial court
found that to be a material and substantial change in circumstances and modified the amount of
child support that Murray would pay to Chavana: $750 per month (23.5% of Murray’s net
monthly resources of $3,190). This amount deviated from the guidelines set out in TEX. FAM.
CODE ANN. §§ 154.121, .128 (Vernon 2008) because the trial court took into account the fact that
Murray provided cell phones for two of the children and Murray’s visitation expenses.
       Shortly after that order was entered, Chavana filed a petition to modify the trial court’s
orders yet again. She asked the trial court to allow her the right to determine the primary
residence of the oldest child, to order an increase in child support, and to allow her to claim the
oldest child as a deduction for income tax purposes. Upon Chavana’s motion, the trial court in
Hill County transferred this case to Jones County.
       In Jones County, Murray mostly agreed that the trial court should modify the agreed
order entered in 2005 and that the sole issue to be decided by the trial court now was the amount
of child support that the trial court would order.
       After a hearing on the petition, the trial court found that there was a material and
substantial change in circumstances that warranted an increase in child support to $848.45 per
month. The trial court also found that the payments were to be made retroactively to July 13,
2008; that Murray was in arrears in the amount of $886.05 to be paid, including interest, at the
rate of $50 per month; and that Chavana was entitled to a judgment in that amount. The trial
court also awarded her the right to claim the oldest child as a deduction for income tax purposes
for 2008.
       In his first point of error, Murray asserts that the trial court erred when it modified child
support because there was not a material and substantial change in the circumstances of the
parties or children. An order regarding child support will not be disturbed on appeal unless the
complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990). The test for an abuse of discretion is whether the court acted without
reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 242 (Tex. 1985), citing Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126
(Tex. 1939). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or
unreasonable. Lindsey v. Lindsey, 965 S.W.2d 589, 591-92 (Tex. App.—El Paso 1998, no pet.).
       A court may modify a child support order if the movant shows (1) that the circumstances
of the parents or the children have materially and substantially changed since the date of the
                                                     2
earlier order’s rendition or (2) that three years had passed since the last order for support was
entered and the monthly amount of the child support award differs by either 20% or $100 from
the amount that would be awarded in accordance with the child support guidelines. TEX. FAM.
CODE ANN. § 156.401(a) (Vernon 2008). In determining whether there has been a material and
substantial change, the trial court must examine and compare the circumstances of the parents
and children at the time of the initial order with the circumstances existing at the time
modification is sought. In re C.C.J., 244 S.W.3d 911, 917 (Tex. App.—Dallas, 2008, no pet.).
       In this case, Chavana filed the motion to modify just three weeks after the prior support
order was signed. Since three years had not passed since the rendition of the prior orders, she
must show evidence of a material and substantial change in the circumstances of the parties or
the children. Chavana asserts that the right to designate the oldest child’s primary residence had
changed since the 2008 order. However, it is clear that the oldest child was already living with
her when the 2008 order was entered and that the trial court at the 2008 hearing considered that
change when awarding her an increase in child support from $464.49 to $750. Further, Murray
stipulated to that in his answer to the petition to modify. He also stipulated that the prior order
did not indicate that change. Both parties testified that the oldest child began living with
Chavana in April 2008. This was not a change in circumstances from the time of the 2008 order.
       Chavana also claims that there was a material and substantial change in Murray’s net
resources because he did not present evidence of all of his income at the 2008 hearing. Chavana
argues that the salary from Murray’s temporary job was not offered into evidence in the 2008
hearing. However, Murray did testify at the 2008 hearing that he had a temporary job with
Whitney EMS. But neither Chavana nor the attorney general made further inquiries into the
income Murray made from that job. The trial court was aware of Murray’s temporary job and
made a statement regarding Murray’s ability to take a second job.
       Moreover, the difference in Murray’s net resources found at the two hearings was not
because of his temporary job with Whitney EMS but, rather, because of a change in salary from
the City of Hillsboro. At the hearing on the petition to modify, Murray testified that his income
for 2008 from the City of Hillsboro was approximately $51,000. The full yearly income from
2008 was not available at the 2008 hearing; therefore, the court used the yearly income from
2007, which was $49,700. Murray further testified that he worked for Whitney EMS until
December 30, 2008, but that, at the time of the hearing, he no longer had a second job. The
difference between $51,000 and $49,700 does not show a material and substantial change in the
                                                3
circumstances of the parties especially when that would not increase child support more than
20% or $100. See Section 156.401(a)(2).
         Chavana also argues that there was a material and substantial change in the circumstances
of the parties because the prior order deviated from the child support guidelines in
Sections 154.121 and 154.128. A child support order not in compliance with guidelines does not
in and of itself establish a material and substantial change in circumstances warranting
modification. Friermood v. Friermood, 25 S.W.3d 758, 760 (Tex. App.—Houston [14th Dist.]
2000, no pet.). A trial court may consider the child support guidelines to determine whether
there has been a material or substantial change of circumstances that warrants a modification of
an existing child support order. TEX. FAM. CODE ANN. § 156.402(a) (Vernon 2008).                  In
modification of existing child support orders, the trial court’s use of percentage guidelines under
child support statutes is discretionary, not mandatory. Escue v. Escue, 810 S.W.2d 845, 848
(Tex. App.—Texarkana 1991, no writ).
         In this case, the trial court stated in its 2008 order that the court was deviating slightly
from the guidelines because Murray was providing cell phones for two of the children and
because of the travel expenses related to visitation. Neither of these circumstances had changed
at the time modification was sought. At the hearing on the petition to modify, Murray testified
that he was still paying for the cell phones for two of the children and that the parties were
meeting in De Leon to pick up and drop off the children. At the 2008 hearing, the trial court
considered other factors when it determined the amount of child support to award. Because these
factors had not changed since the rendition of the 2008 order, a deviation from the child support
guidelines does not show a material and substantial change in circumstances.
         We also note that Chavana had the ability to appeal the 2008 order in a de novo hearing
to the referring court. TEX. FAM. CODE ANN. § 201.015 (Vernon Supp. 2010). Chavana testified
that she was dissatisfied with the 2008 order and that the court had informed her of her right to
appeal that order. However, instead of appealing, she filed another petition to modify. Chavana
did not show a material and substantial change in the circumstances of the parties or the children
sufficient to support a modification of the child support order. We sustain Murray’s first point of
error.
         In his second point of error, Murray asserts that the trial court erred when it ordered
withholding in an amount that was over the maximum amount of 50% of Murray’s disposable
earnings. See TEX. FAM. CODE ANN. § 158.009 (Vernon 2008). Because of our holding in Point
                                                  4
of Error No. 1, we do not need to discuss Murray’s second point.
         In his fourth point of error, Murray argues that the trial court erred when it ordered
retroactive child support. Because the trial court erred when it modified the 2008 order, it also
erred when it ordered Murray to pay child support retroactively. We sustain Murray’s fourth
point of error.
         In his third point of error, Murray argues that the trial court erred when it awarded
Chavana the tax exemption credit. In 2005, Murray and Chavana agreed that Murray would
claim the exemption for the oldest child for the year 2005 and every year thereafter. Chavana
would claim the exemption for the other two children starting in 2006 and every year thereafter.
The federal tax statute provides that, when parents claiming a qualifying child do not file a joint
return, the parent with whom the child resided for the longest period of time during the taxable
year or, if the child resides with each parent for the same amount of time during each taxable
year, the parent with the highest adjusted gross income shall claim the exemption. 26 U.S.C.
§ 152(c)(4)(A). The parties’ prior agreements and orders indicate that the party with whom each
child resided would claim the tax exemption.          Further, the federal statute supports that
arrangement. The oldest child began residing with Chavana in April 2008 and resided with her
for the longest period of time during the taxable year. Therefore, the trial court did not err when
it awarded Chavana the tax exemption for the year 2008. We overrule Murray’s third point of
error.
         The trial court’s judgment is affirmed in part and reversed in part, and the cause is
remanded with instructions to the trial court to enter judgment in accordance with this opinion.




                                                            JIM R. WRIGHT
October 28, 2010                                            CHIEF JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




                                                5
