
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-90-120-CV



WILLIAM JOSEPH KAHN,

	APPELLANT

vs.



ANITA RUTH KAHN,

	APPELLEE


 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT

NO. 472,050, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING

 


	This is a divorce case.  The husband challenges, among
other things, the trial court's order of lump sum child support. 
We will reverse the judgment in part and affirm it in part.


BACKGROUND
	The trial court's order in this case represents a
sincere, thoughtful effort to divide community property in a manner
that is just and right and that avoids the harsh consequences of
the discharge of a property award in bankruptcy.
	In September 1989, appellee, the wife, filed for divorce
from appellant, the husband.  About ten days later, the trial court
signed an agreed temporary order which enjoined both parties from
"selling, transferring, assigning, mortgaging, [or] encumbering"
any of the parties' property.  The order also required the parties
to inform each other of changes of address.
	A few weeks later, the husband moved from Texas to
Florida, abandoning the wife and their two children.  In violation
of the temporary order, he removed some $39,000 in cash as well as
a van and a Porsche automobile, together valued at $20,000.  Before
leaving Austin, the husband secreted the couples' personal papers
and financial records.  He left the wife with little cash, a $2,000
monthly mortgage payment, an automobile in which there was no
equity, and miscellaneous debts.
	The wife sought and obtained a second temporary order
directing the husband to deliver $24,000 in cash to his attorney,
to be held in trust pending a final order in the cause.  The court
also ordered the husband to deliver to his attorney title to the
two automobiles he had removed from the state.  The husband ignored
the order to deliver the vehicle titles.  The record does not
reveal whether he delivered the money to his attorney, who withdrew
from the case about a week before trial.
	At the hearing on the merits, the wife testified that the
husband was intentionally unemployed and that his earning potential
was between $120,000 and $165,000 annually.  She related that,
instead of seeking employment, he chose to play golf and tennis and
to smoke marijuana.  She also testified that the husband had never
given her his address or telephone number in Florida or delivered
the titles to the two vehicles.  In fact, he sold one of the
vehicles and purported to have spent a substantial amount of the
cash, in violation of the temporary orders.  The wife further
related that the husband had threatened to file bankruptcy once the
divorce proceedings were finished because "he wanted to see her
fail."
	The wife sought the return of the cash and the cash value
of the automobiles that the husband had taken to Florida.  The
basis for her request was that she needed the money to cover an
anticipated deficiency from the sale of the couples' Austin
residence.  She asked the court to structure $39,000 of the
requested property award as lump sum child support so that the
husband could not discharge the obligation in bankruptcy.  The
husband did not appear either in person or through an attorney at
the trial.
	The trial court modified the judgment in this case after
a hearing on the husband's motion for new trial.  As modified, the
court's order awarded the wife the majority of the property.  The
court also named the wife managing conservator and the husband
possessory conservator of the children, and ordered the husband to
pay $2,400 monthly child support.  In addition, and pursuant to the
wife's request, the court ordered the husband to make a lump sum
child support payment of $39,000.
	The husband appeals the provisions of the decree
regarding the division of property, child support, and visitation. 
We will address only the husband's contention that the trial court
abused its discretion in ordering the lump sum child support.


DISCUSSION
	The question in this case is whether the trial court had
good cause for ordering the lump sum child support.  A trial court
may order a parent to pay child support in a lump sum if good cause
is shown.  Tex. Fam. Code Ann. § 14.05(a) (Supp. 1991) [1989 Tex.
Gen. Laws, 1st C.S., ch. 25, § 13, at 78].  No Texas appellate
court has addressed the definition of "good cause" under
§ 14.05(a).  We believe that "good cause" contemplates, at a
minimum, a connection between the award and the needs of the child
or children to be supported.
	No such connection exists in this case.  The trial court
was faced with facts that may have supported an award of $39,000 to
the wife as part of the division of marital property.  Pursuant to
the wife's emphatic request, the trial court instead awarded the
$39,000 as child support in an attempt to prevent the husband from
discharging the obligation in bankruptcy.  See 11 U.S.C.A.
523(a)(5) (Supp. 1991) (nondischargeability of child support);
compare In re Smith, 97 Bankr. 326, 329-29 (N.D. Tex. 1989)
(reviewing dischargeability of property awards).  The trial court's
order does not even credit the lump sum award against the husband's
periodic child support obligations.  We conclude that "good cause"
does not encompass the threat that the obligee will discharge a
marital property award in bankruptcy.  Therefore, we must conclude
that the trial court abused its discretion in ordering the husband
to make a lump sum child support payment.
	The wife argues that the husband's violation of the trial
court's temporary orders demonstrates sufficient untrustworthiness
to justify the lump sum award.  An obligee's misconduct may support
a lump sum award under the conditions addressed below.  In this
case, however, the record reveals that the court relied on the
threat of bankruptcy, not the husband's actions, to craft this lump
sum award.  No authority exists for the trial court's approach.


CONCLUSION
	We are sympathetic to the plight of a former spouse who
fears a major portion of her former spouse's obligation to deliver
property awarded to her will be discharged in bankruptcy. 
Unfortunately, we can find no authority for ordering lump sum child
support to avoid this eventuality.  Under these circumstances, we
must reverse the trial court's judgment.
	The wife testified, in a hearing on the husband's
affidavit of inability to pay costs on appeal, (1) that the husband
was in arrears on his periodic child support payments.  If, on
remand, the wife shows that the husband is still delinquent on his
periodic child support payments, a lump sum award may be
appropriate to cover both delinquent and future payments of child
support.
	The husband's first point of error is sustained.  Because
the issues of property division, child support, and visitation in
the divorce decree are interrelated, we will reverse these aspects
of the decree and remand the cause to the trial court for further
proceedings on these issues only.  We need not address the
husband's remaining points of error, and we affirm the trial
court's judgment in all other respects.   See Tex. R. App. P. Ann.
90(a) (Pamph. 1990).


			____________________________________

			Jimmy Carroll, Chief Justice

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

Affirmed in Part and Reversed and Remanded in Part

Filed:  July 24, 1991

[Publish]
1.        The husband did not appear at this or any other hearing. 
The trial court overruled his motion.
