                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-17-00119-CV

               IN THE MATTER OF THE MARRIAGE OF
          MELISSA MARIE CONE AND JOSHUA JOSEPH CONE
             AND IN THE INTEREST OF A.J.C., A CHILD,



                           From the 335th District Court
                              Burleson County, Texas
                               Trial Court No. 27,125


                           MEMORANDUM OPINION

       In four issues, Appellant Joshua Joseph Cone challenges the trial court’s order

regarding the amount he was ordered to pay in child support and the failure to properly

credit him in the division of the marital estate. We will affirm.

                                        Background

       This is the second appeal in this divorce proceeding. In Case Number 10-14-00179-

CV, Joshua appealed the trial court’s ruling that Joshua could not testify if he elected to

plead the Fifth Amendment regarding criminal charges pending against him.                We

affirmed that part of the trial court’s final decree that granted a divorce, but reversed the
decree in part as it related to all other issues, including child custody and child support,

as well as the division of the marital estate.

       Joshua and Melissa were married in December 2010 in Washington State. They

have one child, A.J.C., who was born in 2011. The parties separated in July 2012, and

both filed for divorce in September 2012. In the final decree of divorce, Melissa was

appointed sole managing conservator of A.J.C., and Joshua was appointed possessory

conservator. The divorce decree limited Joshua to supervised visitation with A.J.C. as a

result of his history of family violence. Joshua’s visitations with A.J.C. were required to

be supervised by Safe Harbour in Bryan, Texas. In the final divorce decree, the trial court

also found that A.J.C. required “substantial care and personal supervision because of a

mental or physical disability,” as A.J.C. had been diagnosed with non-verbal autism.

Joshua’s child support payment was set at $1,434.02 per month.

       The trial court made the following findings and conclusions regarding the child

support order:

       1.      The amount of child support ordered by the Court deviates from the
               percentage guidelines.

       2.      The net resources of Joshua Joseph Cone per month are $5,736.06.

       3.      The net resources of Melissa Marie Cone per month are $0.

       4.      The percentage applied to Joshua Joseph Cone’s net resources for
               child support is 25% percent.

       The divorce decree further provides that Joshua is responsible for retroactive child

support in the amount of $15,385.51 from the period between January 2015 and

November 2016.

In re Marriage of Cone                                                                Page 2
           Joshua was awarded, in part, as his sole and separate property: a 2005 Cadillac

Escalade, a 2005 Harley Davidson Sportster, a Bowflex, and a .357 Ruger handgun.

Melissa was awarded, in part, as her sole and separate property: A.J.C.’s car seat and

stroller, all of A.J.C.’s property, and $910.50 for a 2012 tax refund and a firearm sold by

Joshua. The divorce decree notes: “Costs of Court awarded to Joshua Joseph Cone for

the appeal have been offset by the division of the marital property above.”

           After the decree was entered, Joshua filed a motion to modify, correct, or reform

the judgment raising the issues he has raised in this appeal. The motion was denied by

the trial court. At Joshua’s request, the trial court made the following pertinent findings

of fact:

            [8.] The Court found and considered the following when deviating from
           the standard guidelines on support: Testimony of Joshua Joseph Cone’s net
           resource[s] including pay stubs provided and Joshua Joseph Cone’s
           testimony that he receives $1,500.00 to $1,600.00 per month in VA benefits
           for a net resource per month of $5,736.06; The net resources of Melissa Marie
           Cone are $0 per month; the percentage applied to Joshua Joseph Cone’s net
           resources is 25% in which the Court considered the special need of the child.

           ...

           [10.] When considering the retroactive child support in this case, the
           Court considered the following: In previous support agreements prior to
           the Final Decree, Joshua Joseph Cone’s VA benefits were never considered,
           disclosed or provided and testimony showed Joshua Joseph Cone received
           VA benefits in the amount of $1,500.00 to $1,600.00 per month since the
           beginning of this matter. Joshua Joseph Cone’s testimony also showed that
           he was employed for periods while this matter has been ongoing. Thus, at
           a minimum, Joshua Joseph Cone’s support should have been the minimum
           wage presumption plus approximately an additional $325.00 to $350.00 per
           month based on the amount received for the VA benefits. There was no
           testimony that Joshua Joseph Cone had not paid child support at the
           minimum wage figure, so calculating the increase of the amount he should
           have paid and the calculation from his current employment through the

In re Marriage of Cone                                                                     Page 3
       date of trial was more than Petitioner’s requested retroactive child support
       amount.1 Therefore, retroactive child support judgment was set at
       $15,385.51.

       [11.] When considering the division of the community estate, the Court
       considered the following: The community property that was already in
       each parties [sic] possession; All debt and liabilities that each of the parties
       have incurred from and after July 21, 2012; The property nature of the .357
       Ruger handgun.

       The trial court’s conclusions of law found that the property division was “just and

right, having due regard for the rights of each party and the child of the marriage,

irrespective of the characterization of any item of property as either community or

separate.” The trial court further noted that Joshua should pay child support in the

amount of $1,434.02 and medical support in the amount of $50.00 per month beginning

on December 1, 2016. Joshua was additionally ordered to pay $15,385.51 as retroactive

child support in the amount of $50.00 per month until the arrearage is paid in full.

       After Joshua’s appeal, he requested that we transfer the appellate record from his

first appeal into the record of this appeal, which we granted.

                                               Issues

       Joshua raises the following issues:

       (1)     The trial court erred in deviating from the child support guidelines based
               on special needs of the child which did not include any evidence of needs
               in excess of the support guidelines.

       (2)     The trial court’s decree fails to comply with section 154.132 of the Family
               Code.

       (3)     The evidence is insufficient to support the retroactive support awarded.


1
 Melissa requested retroactive child support of $15,385.51 in her “Argument and Request of Court” filed
on December 2, 2016.

In re Marriage of Cone                                                                          Page 4
       (4)     The trial court erred in failing to award Joshua costs on appeal in
               accordance with the judgment and mandate of this Court.

                                             Discussion

       A. Standard of Review.       In an appeal of a judgment rendered after a bench trial,

the trial court’s findings of fact have the same weight as a jury’s verdict. Brejon v. Johnson,

314 S.W.3d 26, 30 (Tex. App.—Houston [1st Dist.] 2009, no pet.). We review a trial court's

decisions regarding conservatorship, child support, including arrearages, and property

division, under an abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109

(Tex. 1990) (per curiam). See Bradshaw v. Bradshaw, 555 S.W.3d 539, 543 (Tex. 2018) (citing

Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981)) (property division); Iliff v. Iliff, 339 S.W.3d

74, 78 (Tex. 2011) (child support); Cline v. Cline, 557 S.W.3d 810, 813 (Tex. App.—Houston

[1st Dist.] 2018, no pet.) (arrearages); Smith v. Smith, 143 S.W.3d 206, 213, 214, 217 (Tex.

App.—Waco 2004, no pet.) (property division, conservatorship, and child support). A

trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or

when it acts without reference to any guiding principles. Worford, 801 S.W.2d at 109;

Smith, 143 S.W.3d at 212.

       When applying an abuse-of-discretion standard, challenges to the legal and factual

sufficiency of the evidence are not independent grounds of error but are factors used in

assessing whether the trial court abused its discretion. Ayala v. Ayala, 387 S.W.3d 721, 726

(Tex. App.—Houston [1st Dist.] 2011, no pet.). “A trial court does not abuse its discretion

when there is some evidence of a substantive and probative character to support the trial

court's judgment.” Id. If findings are challenged, they are not determinative unless

In re Marriage of Cone                                                                   Page 5
supported by the record. Brejon, 314 S.W.3d at 30. An abuse of discretion does not occur

when the trial court's decision is based on conflicting evidence. Davis v. Huey, 571 S.W.2d

859, 862 (Tex. 1978); Kana Energy Servs., Inc. v. Jiangsu Jinshi Mach’ry Group Co., Ltd., 565

S.W.3d 347, 351 (Tex. App.—Houston [14th Dist.] 2018, no pet.). In such a situation, the

trial court is in a better position to determine “the candor, demeanor, and credibility of

the witnesses. . . .” In re Hernandez, No. 10-09-00136-CV, 2011 WL 3821995, at *3 (Tex.

App.—Waco Aug. 10, 2011, no pet.) (mem. op.).

       To determine whether a trial court abused its discretion because the evidence is

legally or factually insufficient to support its decision, we consider: (1) whether the trial

court had sufficient evidence upon which to exercise its discretion; and (2) whether it

erred in its application of that discretion. Bush v. Bush, 336 S.W.3d 722, 729 (Tex. App.—

Houston [1st Dist.] 2010, no pet.); Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—

Dallas 2005, pet. denied).      We conduct the applicable sufficiency review when

considering the first prong of the test. Bush, 336 S.W.3d at 729; Moroch, 174 S.W.3d at 857.

We then determine whether, based on the evidence, the trial court made a reasonable

decision. In re S.T., 508 S.W.3d 482, 489 (Tex. App.—Fort Worth 2015, no pet.); Moroch,

174 S.W.3d at 857.

       B. Child Support for Special Needs Child. In his first issue, Joshua asserts that the

trial court erred in deviating from the child support guidelines based upon A.J.C.’s

special needs because there was no evidence that those special needs required such a

deviation. Basically, Joshua argues that Melissa presented no evidence that she had



In re Marriage of Cone                                                                 Page 6
incurred expenses due to A.J.C.’s condition and, consequently, no evidence that his needs

would not be met by support under the guidelines.2

        Section 154.122 of the Family Code provides:

        (a) The amount of a periodic child support payment established by the child
        support guidelines in effect in this state at the time of the hearing is
        presumed to be reasonable, and an order of support conforming to the
        guidelines is presumed to be in the best interest of the child.

        (b) A court may determine that the application of the guidelines would be
        unjust or inappropriate under the circumstances.

TEX. FAM. CODE ANN. § 154.122.                The trial court may vary from the guidelines in

establishing the amount of child support payments 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. § 154.123(a). In making that determination,

the trial court should consider all relevant factors, including the following:

         (1)     the age and needs of the child;

        (2)      the ability of the parents to contribute to the support of the child;

        (3)      any financial resources available for the support of the child;

        (4)      the amount of time of possession of and access to a child;

        (5)    the amount of the obligee's net resources, including the earning
        potential of the obligee if the actual income of the obligee is significantly
        less than what the obligee could earn because the obligee is intentionally
        unemployed or underemployed and including an increase or decrease in
        the income of the obligee or income that may be attributed to the property
        and assets of the obligee;


2
 Joshua appears to additionally argue that the trial court did not make a specific finding that application
of the guidelines would be unjust or inappropriate as required by § 154.122. However, Joshua did not make
a timely request, objection, or motion in the trial court regarding this issue and it is waived. TEX. R. APP. P.
33.1(a); Adeleye v. Driscal, 544 S.W.3d 467, 479 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

In re Marriage of Cone                                                                                  Page 7
       (6)    child care expenses incurred by either party in order to maintain
       gainful employment;

       (7)   whether either party has the managing conservatorship or actual
       physical custody of another child;

       (8)   the amount of alimony or spousal maintenance actually and
       currently being paid or received by a party;

       (9)    the expenses for a son or daughter for education beyond secondary
       school;

       (10) whether the obligor or obligee has an automobile, housing, or other
       benefits furnished by his or her employer, another person, or a business
       entity;

       (11) the amount of other deductions from the wage or salary income and
       from other compensation for personal services of the parties;

       (12) provision for health care insurance and payment of uninsured
       medical expenses;

       (13) special or extraordinary educational, health care, or other expenses
       of the parties or of the child;

       (14) the cost of travel in order to exercise possession of and access to a
       child;

       (15) positive or negative cash flow from any real and personal property
       and assets, including a business and investments;

       (16)    debts or debt service assumed by either party; and

       (17) any other reason consistent with the best interest of the child, taking
       into consideration the circumstances of the parents.

Id. § 154.123(b).

       While the trial court should consider all relevant factors under § 154.123(b), those

enumerated factors are not exclusive. In re Marriage of Grossnickle, 115 S.W.3d 238, 246



In re Marriage of Cone                                                                Page 8
(Tex. App.—Texarkana 2003, no pet.). The trial court may consider any other factors it

deems relevant in determining the amount of child support.             Id.

       In the divorce decree, the trial court noted that A.J.C. “requires substantial care

and personal supervision because of a mental or physical disability.” Joshua requested

specific findings pursuant to § 154.130 of the Family Code. See TEX. FAM. CODE ANN. §

154.130. The trial court found that Joshua’s net resources were $5,736.06 per month, while

Melissa’s net resources were $0 per month. The trial court also noted that “the percentage

applied to Joshua Joseph Cone’s net resources is 25% in which the Court considered the

special need of the child.” Joshua argues that factor thirteen of § 154.123(b), the “special

or extraordinary educational, health care, or other expenses of the parties or of the child,”

is applicable and that the trial court erred because Melissa made no showing that she

incurred extra expenses due to A.J.C.’s condition. The trial court did not specify which

of the enumerated factors under § 154.123(b) were considered.

       Melissa testified at the final hearing on November 18, 2016 that A.J.C. was

diagnosed with nonverbal autism in 2015, although he had been exhibiting

developmental delays and other problems since he was approximately two years old. At

the time Melissa testified, A.J.C. was approximately five years old. Because of his

condition, A.J.C. was unable to feed himself and was resistant to potty training. Melissa

further noted that A.J.C. would have “melt downs” if his schedule was changed without

notice. Melissa testified that A.J.C. attends school from 8:30 to 11:00 during the week,

followed by autism therapy in Bryan twice a week. As Melissa and A.J.C. live in

Somerville, it takes her forty-five minutes each way to drive to and from Bryan. Melissa

In re Marriage of Cone                                                                 Page 9
noted that the cost of the autism therapy is covered by a grant. Melissa also testified that

A.J.C. is visited by three different therapists while at school, for which she is not charged.

Melissa stated that A.J.C.’s problems have caused her to have to care for him practically

full time, except for those times when he is in school. Melissa testified that, because of

A.J.C.’s limitations, she could not take him out in public as unfamiliar places and

unfamiliar people cause him anxiety and cause him to act out. Due to A.J.C.’s disabilities,

he receives social security disability and Medicaid. Melissa testified that she and A.J.C.

also receive food stamps. Melissa noted that, in addition to the child support paid by

Joshua, her parents support her and A.J.C. financially and have provided them a mobile

home in which to live.

       As noted, the divorce decree provides that Joshua has supervised visitation with

A.J.C. at Safe Harbour in Bryan on the first and third Saturdays of each month for a period

of two hours. Melissa is required to transport A.J.C. to Safe Harbour for those visitations.

       When the first final hearing was held in 2013, Joshua did not testify because the

trial court refused to allow him to take the Fifth Amendment on specific questions.

Therefore, there was no evidence at that time of Joshua’s income. Child support was set

pursuant to § 154.009(a) of the Family Code based upon a forty-hour work-week at

minimum wage. Joshua was ordered to pay child support in the amount of $233.64 per

month.

       When the final decree of divorce was signed in 2017, Joshua was employed with

an annual income of $72,880.86, plus $1,500.00 to $1,600.00 per month in VA disability



In re Marriage of Cone                                                                 Page 10
benefits. Joshua was also newly married and had bought a house. Melissa’s resources

were still $0.

       The evidence supports a determination that Melissa was unable to work due to

A.J.C.’s disability, and she had very few resources other than a 2008 Nissan, a small

amount of social security disability, and food stamps. Melissa was also responsible for

the expenses of transporting A.J.C. to Bryan for therapy and for supervised visitations

with Joshua. The foregoing constitutes some evidence of a substantive and probative

character to support the trial court's judgment.

       Considering the § 154.123(b) factors and all other factors related to A.J.C.’s special

needs, the trial court did not abuse its discretion in determining that the percentage of

child support deducted from Joshua’s income should be 25% rather than 20%. We

overrule Joshua’s first issue.

       C. Section 154.132. In his second issue, Joshua specifically argues that the trial

court failed to deduct $95 from his child support obligation which Melissa was receiving

in disability benefits for A.J.C. Section 154.132 of the family code provides:

       In applying the child support guidelines for an obligor who has a disability
       and who is required to pay support for a child who receives benefits as a
       result of the obligor's disability, the court shall apply the guidelines by
       determining the amount of child support that would be ordered under the
       child support guidelines and subtracting from that total the amount of
       benefits or the value of the benefits paid to or for the child as a result of the
       obligor's disability.

TEX. FAM. CODE ANN. § 154.132.

       The evidence before the court was that A.J.C.’s social security disability benefits

were reduced by the $95.00 that A.J.C. was receiving from the VA. The food stamps

In re Marriage of Cone                                                                     Page 11
Melissa and A.J.C. had been receiving were also cancelled due to their receipt of VA

benefits, although the food stamps were subsequently restored. Melissa testified that she

had never applied for or received on behalf of herself or A.J.C. any benefits from the VA.

Melissa further testified that a counselor with the VA in College Station told her that

Joshua was collecting those benefits on behalf of A.J.C.

       Joshua testified that he applied for VA disability benefits in 2012, before the

divorce petitions were filed, and began receiving benefits in 2014. Joshua also testified

that he had identified both Melissa and A.J.C. as his dependents in the application for VA

benefits. Joshua testified that after he remarried, he replaced Melissa in the VA records

with his new wife. There was no evidence before the trial court that Joshua ever removed

A.J.C. as a dependent.      Additionally, Joshua never denied that he was receiving

additional benefits on behalf of Melissa or A.J.C.; he merely stated that he did not know.

       The foregoing constitutes some evidence of a substantive and probative character

in support of the trial court's judgment. Because the trial court was in the best position

to evaluate the credibility of the witnesses, there was sufficient evidence for the trial court

to find that Joshua was receiving an additional $95.00 per month on behalf of A.J.C. rather

than Melissa. The trial court did not abuse its discretion in failing to reduce Joshua’s child

support obligation by $95.00. We overrule Joshua’s second issue.

       D.    Retroactive Award.     In his third issue, Joshua contends that there was

insufficient evidence to support the retroactive support awarded to Melissa. In the final




In re Marriage of Cone                                                                  Page 12
divorce decree, the trial court directed Joshua to pay retroactive child support for the

period from January 2015 through November 2016 in the amount of $15,385.51.3

       Pursuant to § 154.009 of the family code, the court may order a parent to pay

retroactive child support, and may order “retroactive child support back to the date of

the separation of the child’s parents.” TEX. FAM. CODE ANN. § 154.009(e).

       At the final hearing, Joshua testified that he began receiving VA disability benefits

in an amount between $1,500 and $1,600 per month in August of 2014. VA disability

benefit payments are included in the calculation of child support payments.                   Id. §

154.062(b)(5). Joshua further testified that he was employed full-time in April 2016 at an

annual salary of $72,880.86.       Joshua’s VA benefits and salary were not previously

considered in the calculation of his support payments.

       The starting date for the trial court’s calculation of the amount of arrearage owed

by Joshua in the final divorce decree was January 1, 2015. From that date until the final

divorce decree was signed, Joshua paid $233.64 per month in child support. That amount

was based upon a forty-hour work week at minimum wage. Id. § 154.009(a).

       Joshua argues that the trial court erred because it made a finding that Joshua

received VA benefits “since the beginning of this matter.” Even if the trial court erred in

making that finding, the final divorce decree, as noted, used January 1, 2015 as the

beginning date for calculation of any arrearage. The starting date used by the trial court




3
 As previously noted, Melissa requested retroactive child support of $15,385.51 in her “Argument and
Request of Court” filed on December 2, 2016

In re Marriage of Cone                                                                      Page 13
worked to Joshua’s benefit as it excluded the VA benefits Joshua received from August

2014 through December 31, 2014 in the calculation of the arrearage.

       Joshua also argues that the trial court erred because it based the retroactive

calculation on Joshua’s income in 2015 when there was no evidence of his employment

in 2015. Joshua argues that the trial court erred in considering his 2015 income tax

statement because it was not introduced at the final hearing but merely attached as an

exhibit to Melissa’s summation. There is no indication, however, that the trial court used

Joshua’s 2015 income tax statement when it calculated the arrearage.

       As Melissa argues, the trial court could have ordered twenty retroactive payments

of $320 based on twenty percent of Joshua’s VA benefits of $1,600 and eight retroactive

support payments of $1,147.21, totaling $15,385.51, the amount awarded by the trial

court. The trial court could have included additional amounts based upon Joshua’s

testimony at the final hearing that he had been employed during the period his child

support obligation was based upon a minimum wage. The foregoing constitutes some

evidence of a substantive and probative character to support the trial court's judgment.

       The trial court did not abuse its discretion in directing Joshua to pay an arrearage

of $15,385.51. We overrule Joshua’s third issue.

       E. Award of Appellate Costs. Joshua argues in his fourth issue that the trial court

erred by failing to include the appellate costs he was awarded on appeal as part of the

property division. In the final divorce decree, the trial court notes: “Costs of Court

awarded to Joshua Joseph Cone for the appeal have been offset by the division of the



In re Marriage of Cone                                                              Page 14
marital property above.” The record reflects that the amount paid by Joshua as costs is

$2,113.00.

       There is sufficient evidence in the record to reflect that the division of property in

the final divorce decree signed on January 19, 2017 reflected a division that credited

Joshua in an amount sufficient to cover the costs he paid. In only one instance, the final

divorce decree signed on March 28, 2014 directed Joshua to pay one-half of Melissa’s

attorney’s fees in the amount of $7,000.00. The 2017 decree directed that each party

should pay their own attorney’s fees, a $7,000.00 savings to Joshua that more than covered

the costs of his appeal. The foregoing constitutes some evidence of a substantive and

probative character to support the trial court's judgment.

       The trial court did not abuse its discretion in determining that Joshua received a

credit of at least $2,113.00 in the division of the marital property. We overrule Joshua’s

fourth issue.

                                        Conclusion

       Having overruled all of Joshua’s issues, we affirm the judgment of the trial court.




                                                  REX D. DAVIS
                                                  Justice




In re Marriage of Cone                                                                Page 15
Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
       (Justice Neill concurring without a separate opinion)
Judgment affirmed
Opinion delivered and filed August 14, 2019
[CV06]




In re Marriage of Cone                                         Page 16
