Reversed and Remanded and Opinion Filed August 13, 2013




                                           S  In The
                                        Court of Appeals
                                 Fifth District of Texas at Dallas

                                        No. 05-12-00110-CV

                             IN THE INTEREST OF D.T.S., A CHILD

                      On Appeal from the 254th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DF-03-1889-R

                                  MEMORANDUM OPINION
                             Before Justices Bridges, O'Neill, and Francis
                                     Opinion by Justice Bridges
       Edwin Sorensen (Father) appeals the trial court’s order denying his motion to modify

child support and granting Barbara Sorensen’s (Mother) motion to enforce child support

obligation. In a single point of error, Father argues the trial court abused its discretion in

denying his motion to modify child support. We reverse and remand for further proceedings.

       Mother and Father divorced in December 2005. Father paid $925 per month in child

support for the couple’s child, D.T.S. Father became disabled in April 2010; as a result, D.T.S.

received $1078 each month in social security benefit payments beginning in October 2010. In

March 2011, Mother filed a motion alleging Father had failed to make certain child support

payments and seeking an order enforcing the trial court’s child support order. Father filed a

response alleging he was unable to provide support in the amount ordered. In July 2011, the trial

court conducted a hearing on the parties’ motions to modify child support and enforce Father’s

child support obligations.
           At the hearing, Father argued the $1078 social security payment D.T.S. received should

be considered an offset of Father’s $925 per month child support obligation. Because the $1078

payment exceeded Father’s child support obligation, Father argued he should have no further

obligation. Mother testified that D.T.S., nineteen at the time of the hearing, is disabled and

requires twenty-four-hour care.1 Mother testified D.T.S. has diabetes, “her cognitive level is age

two,” and she is “nonverbal.” D.T.S. requires $900 per month for her supplies, including

medications and medical supplies. Mother testified she was in Chapter 13 bankruptcy and had

not made a mortgage payment in a year. At the time of the hearing, Mother was on short-term

disability because she had fallen on a previously reconstructed ankle, and she expected to be put

on permanent disability. In light of her testimony, Mother asked the trial judge to order Father to

continue to make the $925 payment in addition to the $1078 social security payment.

           In closing arguments, Father’s counsel asked the court to reduce Father’s child support

payments to zero and stated, though Father did not want D.T.S. institutionalized, “that’s where

we’re likely headed.” Mother’s counsel emphasized “this is not a guideline support case” and

stated, “the Court has the evidence.” Mother’s counsel asked that “the child support continue in

addition to the social security disability payments.”

           On July 14, 2011, the trial court entered an order containing its findings that Father had

failed to make child support payments from October 2010 through June 2011. The order found

Father in contempt of court and ordered him to serve ninety days in Dallas County jail “and as

long thereafter until he pays the sum of $7162.17.” The order suspended Father’s sentence as

long as he continued to pay $925 together with $200 per month on the arrearage of $7162.17

until fully paid. In addition, the order contained the trial court’s findings that D.T.S.’s minimum

reasonable needs are in the sum of $2918.36, mother’s monthly resources were $1820.53, and

   1
       The nature and severity of D.T.S.’s disability was not contested.



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Father’s monthly resources were $3249.80, including a $300 deduction for medical insurance on

D.T.S. The court found that father’s share of D.T.S.’s needs, after reducing by the amount of

social security disability payments, is $1196.23. Accordingly, the trial court found that Father

failed to show a material and substantial change of circumstances to justify a reduction of child

support. However, because Mother had not requested an increase in the child support payment

from Father, the court did not increase the amount Father was required to pay. This appeal

followed.

       In a single point of error, Father argues the trial court abused its discretion in denying his

motion to modify child support. Specifically, Father argues he is entitled to an offset of $1078 in

social security benefits D.T.S. receives, bringing his support obligation to zero. We agree.

       We review a trial court’s judgment on child support for an abuse of discretion. See

Woxford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re K.N.C., 276 S.W.3d 624, 626 (Tex.

App.—Dallas 2008, no pet.). Section 154.132 of the family code, upon which Father relies,

provides that 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

of 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 (West 2008).

       Here, the trial court’s order specifically shows Mother did not request an increase in

Father’s monthly child support payment, and the trial court did not raise the amount of Father’s

payment from $925. We conclude the trial court, in violation of section 154.132, failed to

subtract the $1078 in benefits from the amount the trial court determined was Father’s share of

child support, $925. See id. § 154.132. Thus, the trial court abused its discretion in failing to

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offset Father’s $925 child support obligation by the $1078 amount received in benefits. See id.;

Woxford, 801 S.W.2d at 109; In re K.N.C., 276 S.W.3d at 626. We sustain Father’s point of

error.

         We reverse the trial court’s judgment and remand for further proceedings.




                                                     /David L. Bridges/
120110F.P05                                          DAVID L. BRIDGES
                                                     JUSTICE




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                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

IN THE INTEREST OF D.T.S., A CHILD                   On Appeal from the 254th Judicial District
                                                     Court, Dallas County, Texas
No. 05-12-00110-CV                                   Trial Court Cause No. DF-03-1889-R.
                                                     Opinion delivered by Justice Bridges.
                                                     Justices O'Neill and Francis participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED, and this cause is REMANDED for further proceedings.
       It is ORDERED that appellee Barbara Sorensen recover her costs of this appeal from
appellant Edwin Sorensen.


Judgment entered August 13, 2013




                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE




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