






In the Interest of JCKa Minor Child















IN THE
TENTH COURT OF APPEALS
 

No. 10-01-00400-CV

IN THE INTEREST OF J.C.K., A MINOR CHILD

 

From the 66th District Court
Hill County, Texas
Trial Court # 35,329
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
O P I N I O N
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

Â Â Â Â Â Â The trial court adjudicated Thomas Jake Vannatta to be J.C.K.âs biological father and
ordered Vannatta to pay current and retroactive child support, prenatal and postnatal health
care expenses, and attorneyâs fees.  Vannatta presents multiple issues on appeal challenging the
amounts the court ordered him to pay.
BACKGROUND
Â Â Â Â Â Â The Attorney General initiated parentage and child support proceedings with the Title IV-D agency (commonly referred to as the Title IV-D âcourtâ) on behalf of J.C.K. and his mother
Kerrie Kolacek in June 1997.  The associate judge signed an order in November 1997
adjudicating Vannattaâs status as J.C.K.âs biological father.  The order required Vannatta to
pay: prospective child support of $240 per month, fifty percent of J.C.K.âs unreimbursed
medical expenses, and $8,000 in retroactive child support to be paid at the rate of $110 per
month.  Kolacek appealed to the district court.
Â Â Â Â Â Â After a two-part hearing, the district court rendered an order adjudicating Vannattaâs status
as J.C.K.âs biological father and establishing Vannatta and Kolacek as joint managing
conservators.  The court ordered Vannatta to pay: prospective child support of $378 per
month;
 $41,770 in retroactive child support to be paid at the rate of $150 per month;
reimbursement for $7,310 of prenatal and postnatal health care expenses to be paid at the rate
of $50 per month; $5,000 in trial attorneyâs fees to be paid at the rate of $50 per month; and
$6,000 in appellate attorneyâs fees.
Â Â Â Â Â Â Vannatta presents seventeen issues on appeal.  Issues one through four challenge the award
of prospective child support.  Issues five through eight challenge the courtâs computation of
Vannattaâs net monthly resources to determine the amount of retroactive child support.  Issues
nine through eleven challenge the courtâs alleged failure to consider mitigating factors in
awarding retroactive child support.  Issue twelve challenges the courtâs award of postjudgment
interest for retroactive child support.  Issues thirteen through fifteen challenge the award of
reimbursement for prenatal and postnatal health care expenses.  Issues sixteen and seventeen
challenge the manner in which the court awarded trial attorneyâs fees.
STANDARD OF REVIEW
Â Â Â Â Â Â We review child support orders under an abuse-of-discretion standard.  Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Baker v. Peterson, No. 10-02-00113-CV, slip op. at 3, 2004 Tex. App. LEXIS 3245, at *4 (Tex. App.âWaco Apr. 7, 2004,
no pet. h.); Norris v. Norris, 56 S.W.3d 333, 337 (Tex. App.âEl Paso 2001, no pet.).  We do
not conduct an independent review of findings of fact in a child support case under traditional
legal and factual sufficiency standards.  Baker, No. 10-02-00113-CV, slip op. at 4, 2004 Tex.
App. LEXIS 3245, at *5; London v. London, 94 S.W.3d 139, 143-44 (Tex. App.âHouston
[14th Dist.] 2002, no pet.); cf. Norris, 56 S.W.3d at 338.  Rather, legal and factual sufficiency
are factors which can be considered in determining whether an abuse of discretion has
occurred.  Baker, No. 10-02-00113-CV, slip op. at 4, 2004 Tex. App. LEXIS 3245, at *6;
London, 94 S.W.3d at 143-44; accord Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226
(Tex. 1991).
Â Â Â Â Â Â A trial court abuses its discretion when it acts âwithout reference to any guiding rules and
principlesâ or in an arbitrary and unreasonable manner.  City of San Benito v. Rio Grande
Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).  A trial court has no discretion in
deciding what law applies or in applying that law to the facts of the case.  In re Kuntz, 124
S.W.3d 179, 181 (Tex. 2003) (orig. proceeding); accord Atty. Gen. of Tex. v. Stevens, 84
S.W.3d 720, 722 (Tex. App.âHouston [1st Dist.] 2002, no pet.) (failure to analyze or apply
law correctly constitutes abuse of discretion); In re D.S., 76 S.W.3d 512, 516 (Tex. App.â
Houston [14th Dist.] 2002, no pet.) (same).
PROSPECTIVE CHILD SUPPORT
Â Â Â Â Â Â Vannatta contends in his first issue that the court abused its discretion by varying from the
child support guidelines in determining the amount of prospective child support he should pay
without stating the reasons for doing so.  He contends in his second through fourth issues
respectively that the record contains no evidence or factually insufficient evidence to support
Findings of Fact Nos. 7, 8, and 10.
Â Â Â Â Â Â The findings at issue are as follows:
Â Â Â Â Â Â 7.Â Â Â Thomas Jake Vannattaâs monthly net resources are $2,561.57.
Â Â Â Â Â Â 8.Â Â Â The monthly net resources of Kerrie Kolacek are $2,138.
10.The amount of child support if the percentage guidelines are applied to the first
$6,000 of Thomas Jake Vannattaâs net resources is $377.83 at 14.75% and
$409.85 at 16.0%.  The amount of child support ordered, $377.83, was
calculated by taking 14.75% of Respondentâs net resources.

Â Â Â Â Â Â Vannatta argues in connection with these issues
 that the court abused its discretion by
calculating his net monthly resources to include: (1) the entirety of the interest income reported
on the 1999 tax return his wife Cindy and he filed; (2) one-half of the rental income from a
building held in Cindyâs name; and (3) one-half of the profit from a child care business
operated by Cindy and her sister.  He concludes that the monthly child support would have
been $35 less if these items had not been included in calculating his net monthly resources. 
Kolacek does not dispute that the court included these items in calculating Vannattaâs net
resources.  Nor does Kolacek dispute that the court should have included only one-half of the
interest income reported on the Vannattasâ tax return.
Â Â Â Â Â Â Vannatta characterizes the building and the child care business as community assets subject
to Cindyâs sole management and control.  Kolacek does not dispute this characterization. 
Thus, Vannatta argues that the assets in question should not be considered in determining his
net resources because such assets are not subject to any nontortious liabilities he may incur
during his marriage to Cindy.  See Tex. Fam. Code Ann. Â§ 3.202(b)(2) (Vernon 1998).
Â Â Â Â Â Â Section 154.062 of the Family Code defines what items are to be included in calculating an
obligorâs net resources.  Among other things, the list includes âself-employment income,â ânet
rental income,â and âall other income actually being received.â  Tex. Fam. Code Ann. Â§
154.062(b)(3), (4), (5) (Vernon 2002).  However, section
 154.069(a) expressly prohibits a
court from including âany portion of the net resources of [an obligorâs] spouseâ in calculating
the amount of child support to be ordered.  Id. Â§ 154.069(a) (Vernon 2002) (emphasis added).
Â Â Â Â Â Â Section 154.069 is a legislative endeavor âto design a neutral scheme that would be
unaffected by the remarriage of the child support obligor, either for the purpose of increasing
or decreasing child support.â  Starck v. Nelson, 878 S.W.2d 302, 306 (Tex. App.âCorpus
Christi 1994, no writ) (quoted with approval by In re Knott, 118 S.W.3d 899, 905 (Tex.
App.âTexarkana 2003, no pet.)).  Thus, the Texarkana Court of Appeals has concluded that,
even though income generated by a spouseâs separate property is community property, no
portion of that income should be included in calculating a child support obligorâs net resources. 
Knott, 118 S.W.3d at 904.  For the reasons which follow, we conclude that the same rule
applies to income generated by community property subject to the sole management and
control of the non-obligor spouse.
Â Â Â Â Â Â In determining what are the net resources of the non-obligor spouse, only one type of
resource plainly must be excluded under section 154.069, the non-obligor spouseâs earned
income (i.e., â100 percent of all wage and salary income and other compensation for personal
servicesâ), even though this is community property.  See Tex. Fam. Code Ann. Â§
154.062(b)(1) (Vernon 2002), Â§ 154.069(a).  Notably, a spouseâs earnings are classified under
marital property law as community property subject to the sole management and control of that
spouse.  Id. Â§ 3.102(a)(1) (Vernon 1998).  As such, the non-obligor spouseâs earnings are not
subject to any nontortious liabilities the obligor incurs during the marriage.
 Id. Â§ 3.202(b)(2).
Â Â Â Â Â Â Because of constitutional and statutory amendments, the line between community property
and separate property has been blurred.  Under article XVI, section 15 of the Texas
Constitution, spouses can by written agreement convert community property to separate
property or vice versa.  Tex. Const. art. XVI, Â§ 15.  The statutes governing the management
of marital property provide a clear legal guideline for differentiating between income-producing property which should be considered for child support purposes as among the assets
of an obligor spouse and that which should be considered as among the assets of the non-obligor spouse.  Following this approach yields the same result reached in Knotts.  See Tex.
Fam. Code Ann. Â§ 3.102(a)(2) (Vernon 1998) (income from separate property is community
property subject to the sole management and control of the spouse who owns the separate
property).
Â Â Â Â Â Â This approach is also consistent with the undisputed manner in which the interest income
reported on the Vannattasâ tax returns should be considered.  Id. Â§ 3.102(b) (Vernon 1998)
(community property subject to sole management and control of one spouse intermingled with
community property subject to sole management and control of the other spouse is subject to
their joint management and control).  Thus, because the interest income is subject to the joint
management and control of the Vannattas, fifty percent is included within Vannattaâs net
resources.
Â Â Â Â Â Â In addition, this approach is consistent with section 3.202(b)(2), which provides rules for
marital property liability.  Id. Â§ 3.202(b)(2).  The Supreme Court has characterized child
support as a âliabilityâ of the obligor.  In re A.D., 73 S.W.3d 244, 248 (Tex. 2002). 
Community property which is subject to the sole management and control of one spouse is not
subject to the liabilities of the other spouse.  Tex. Fam. Code Ann. Â§ 3.202(b)(2).
Â Â Â Â Â Â A danger of this approach is that it gives rise to the possibility of fraudulent conduct on
the part of an obligor spouse in an effort to avoid the duty of support.  However, the Family
Code provides mechanisms to combat such conduct.  Section 154.066 permits a court to base a
child support award on the earning potential of an obligor if the court determines that the
obligor is intentionally unemployed or underemployed.  Id. Â§ 154.066 (Vernon 2002).  Section
154.067 permits a court to âassign a reasonable amount of deemed income to income-producing assets that a party has voluntarily transferred.â  Id. Â§ 154.067(b) (Vernon 2002).
Â Â Â Â Â Â Finally, a court may vary from the child support guidelines â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.â  Id. Â§ 154.123(a) (Vernon 2002).  In determining whether to
vary from the guidelines, the court may consider:
Â Â Â Â Â Â â¢Â Â Â Â âany financial resources available for the support of the child;â
Â 
Â Â Â Â Â Â â¢Â Â Â Â  âwhether the obligor . . . has an automobile, housing, or other benefits furnished by .
. . another person . . .;â and
Â 
Â Â Â Â Â Â â¢Â Â Â Â âany other reason consistent with the best interest of the child, taking into
consideration the circumstances of the parents.â
Â 
Id. Â§ 154.123(b)(3), (10), (17) (Vernon 2002).
Â Â Â Â Â Â It must be noted that the Corpus Christi Court of Appeals has determined that a court
should not consider the resources of a non-obligor spouse as a basis to vary from the support
guidelines under section 154.123.  See Starck, 878 S.W.2d at 306 (âPermitting the court to
deviate from child support guidelines because the obligorâs new spouse contributes to their
joint living expenses allows the court to do indirectly what the statute directly prohibits.â). 
We agree that the resources of a non-obligor spouse should not be the sole basis to vary from
the guidelines.  However, if the obligee presents evidence that the obligor  has intentionally or
voluntarily reduced his earnings or earning potential, then the best interest of the child may
dictate that the resources of a non-obligor spouse should be considered in deciding whether to
vary from the guidelines.  See Tex. Fam. Code Ann. Â§ 154.123(a).
Â Â Â Â Â Â Consistent with Knott, we hold that no portion of the income generated by community
property subject to the sole management and control of the spouse of a child support obligor
should be included in calculating the obligorâs net resources, absent evidence which would
justify a variance from the child support guidelines.  The assets in question are community
property subject to Cindyâs sole management and control.  Thus, the court should not have
included any portion of the income generated by these assets in calculating Vannattaâs net
resources.  See Tex. Fam. Code Ann. Â§ 154.069(a); cf. Knott, 118 S.W.3d at 904.
Â Â Â Â Â Â Accordingly, the court abused its discretion by including income generated by community
property subject to Cindyâs sole management and control and by including more than one-half
of the interest income reported on the Vannattasâ tax return in its calculation of Vannattaâs net
resources.  As noted, this miscalculation appears to result in a difference of $35 per month in
the child support obligation.  Although this figure seems inconsequential on its face, when it is
multiplied over the term of the obligation (here assuming until J.C.K.âs 18th birthday), the
total variance is $315.
  Therefore, the courtâs error in this regard probably caused the
rendition of an improper prospective child support award.  See Tex. R. App. P. 44.1(a)(1); In
re Marriage of Thurmond, 888 S.W.2d 269, 276 (Tex. App.âAmarillo 1994, writ denied). 
Vannattaâs first, second, and fourth issues are sustained.
RETROACTIVE CHILD SUPPORT
Net Monthly Resources
Â Â Â Â Â Â Vannatta contends in his fifth issue that the court abused its discretion by ordering him to
pay $41,770 in retroactive child support because the record contains no evidence or factually
insufficient evidence to support Findings of Fact Nos. 19, 28, 29, 30, and 31.  He contends in
his sixth issue that the record contains no evidence or factually insufficient evidence to support
a variance from the child support guidelines.  He contends in his seventh issue that the court
abused its discretion by including a portion of Cindyâs net resources in calculating his own net
resources.  He contends in his eighth issue that the court abused its discretion by failing to
deduct net operating expenses and mortgage payments in calculating his net rental income.
Â Â Â Â Â Â The contested findings of fact state the courtâs findings with regard to Vannattaâs net
monthly resources in certain years between J.C.K.âs birth and the filing of this suit. 
Specifically, Vannatta challenges the courtâs findings on his net monthly resources in 1985 and
from 1994 through 1997.
Â Â Â Â Â Â Vannatta did not produce a 1985 tax return or other documentary evidence of his income
for that year.  He testified that he worked for the same company from January 1985 to October
1993.  During that period, his gross weekly income fluctuated between $425 and $600.  The
court based its finding of Vannattaâs net monthly resources for 1985 by taking the average of
these two figures ($512.50) as his gross weekly income.
Â Â Â Â Â Â Vannatta counters that a review of the courtâs findings regarding his income between 1985
and 1993 reflects a gradual increase in income during this eight-year period and the courtâs
finding with respect to his 1985 income does not fit within this pattern.  Thus, he contends that
the court should have considered his gross weekly income for 1985 to be closer to the $425
figure than in the middle.  Accepting Vannattaâs calculations would lower his 1985 net
monthly resources by approximately $278.

Â Â Â Â Â Â True, Vannattaâs argument that the gradual progression of his income growth as otherwise
reflected in the courtâs findings makes the lower calculation seem logically correct.  However,
Vannattaâs counsel did not take the opportunity to clarify this after Kolacekâs counsel
concluded his questioning of Vannatta.  Therefore, the only evidence before the court was
Vannattaâs testimony that he made between $425 and $600 per week between 1985 and 1993.
Â Â Â Â Â Â Courts have approved the use of averaging to determine an obligorâs net resources when
the record contains imprecise information regarding income.  See e.g. Norris, 56 S.W.3d at
341-42; Mai v. Mai, 853 S.W.2d 615, 618-19 (Tex. App.âHouston [1st Dist.] 1993, no writ). 
Accordingly, we cannot say that the court acted without reference to guiding rules and
principles by determining Vannattaâs net resources for 1985 in this manner.  See City of San
Benito, 109 S.W.3d at 757.  Moreover, Vannattaâs testimony regarding his wages constitutes
some evidence and factually sufficient evidence to support Finding of Fact No. 19 regarding
Vannattaâs net resources in 1985.
Â Â Â Â Â Â Vannattaâs tax returns for 1994 through 1997 provide some evidence and factually
sufficient evidence to support Findings of Fact Nos. 28 through 31.  Vannattaâs fifth issue is
overruled.
Â Â Â Â Â Â A review of Vannattaâs tax returns and the courtâs findings with respect to Vannattaâs net
monthly resources from 1994 through 1997 indicates that the courtâs calculations do not
include community property subject to Cindyâs sole management and control.  In addition, the
court properly accounted for the net operating expenses (including mortgage payments)
Vannatta incurred in his own operation of a rent house and Vannattaâs losses from a coin
business he operated in 1995 and 1996.
  Vannattaâs seventh and eighth issues are overruled.
Â Â Â Â Â Â Vannattaâs contention in his sixth issue, that the court improperly varied from the child
support guidelines, depends on affirmative findings on his fifth, seventh, and/or eighth issues. 
Because we have found against him on these issues, we overrule his sixth issue.
Mitigating Factors
Â Â Â Â Â Â Vannatta contends in his ninth through eleventh issues that the court abused its discretion
by awarding $41,770 in retroactive child support without giving proper consideration to
mitigating factors including: the cost of his other sonsâ post-secondary education, the debt
service that would be imposed on him as a result of the child support order, the statutory
considerations provided by section 154.131(b), Kolacekâs thirteen-year delay in telling him of
J.C.K.âs birth, the lack of a meaningful relationship between Vannatta and J.C.K. due to this
passage of time, and the undue financial hardship that would be imposed on Vannatta and his
family as a result of the child support order.
Â Â Â Â Â Â Vannatta focuses primarily on Kolacekâs delay in telling him of J.C.K.âs birth.  However,
Kolacek did retain an attorney who notified Vannatta before J.C.K.âs birth that Kolacek was
pregnant with his child.  In response, Vannatta consulted with an attorney to determine his
rights and responsibilities.  Vannattaâs attorney mailed a letter to Kolacekâs attorney requesting
that Vannatta be notified when the child was born and advising that Vannatta would agree to
blood testing to determine paternity.  Other than a sighting in a bar on one occasion, the
parties had no further contact with each other until Kolacek had the Attorney General institute
this proceeding.
Â Â Â Â Â Â The version of section 154.131(b) applicable to this case requires a court to consider
whether:
(1) the mother of the child had made any previous attempts to notify the biological
father of his paternity or probable paternity;

Â Â Â Â Â Â (2) the biological father had knowledge of his paternity or probable paternity;
Â 
(3) the order of retroactive child support will impose an undue financial hardship on
the obligor or the obligor's family; and
Â 
(4) the obligor has provided actual support or other necessaries before the filing of the
action.

Act of April 6, 1995, 74th Leg., R.S., ch. 20, Â§ 1, sec. 154.131(b), 1995 Tex. Gen. Laws
113, 164 (amended 2001) (current version at Tex. Fam. Code Ann. Â§ 154.131(b) (Vernon
2002)).
Â Â Â Â Â Â The main thrust of Vannattaâs closing argument to the trial court was that any retroactive
child support should be limited because Kolacek failed to notify him of J.C.K.âs birth for
thirteen years.  The court stated in its Additional Finding of Fact No. 9 that it took into
consideration the financial hardship on Vannatta when it ordered retroactive child support.
Â Â Â Â Â Â Vannatta presented no evidence regarding his sonsâs anticipated post-secondary education
expenses.  He did not make the âdebt serviceâ argument before the trial court which he
contends in his ninth issue the court should have considered as a mitigating factor.
Â Â Â Â Â Â The only basis on which Vannatta concludes that the trial court failed to consider the
mitigating factors he presented is the fact that the court chose to award the full amount of
retroactive child support authorized by the statutory guidelines.  However, the courtâs decision
to award the full amount of retroactive support could also be construed as a decision that the
mitigating factors presented by Vannatta did not warrant a reduction in the amount of
retroactive support.
Â Â Â Â Â Â Section 154.131 vests a trial court with discretion to determine whether to award
retroactive child support and the amount of that support.  See In re Valadez, 980 S.W.2d 910,
913 (Tex. App.âCorpus Christi 1998, pet. denied); In re S.E.W., 960 S.W.2d 954, 956 (Tex.
App.âTexarkana 1998, no pet.).  Because Kolacek told Vannatta of his probable paternity
before J.C.K.âs birth, the trial court could have determined that Kolacek was not solely
responsible for the delay in litigating Vannattaâs paternity.  Accordingly, we cannot say that
the trial court abused its discretion when it ordered Vannatta to pay the retroactive child
support awarded.  Vannattaâs ninth through eleventh issues are overruled.
INTEREST
Â Â Â Â Â Â Vannatta contends in his twelfth issue that the court abused its discretion by requiring him
to pay the statutory rate of interest (12 percent per annum) for the retroactive child support
awarded.  However, Vannatta acknowledges that the statute applicable to this case provided for
interest to accrue at that rate.  See Act of May 26, 1995, 74th Leg., R.S., ch. 751, Â§ 53, 1995
Tex. Gen. Laws 3888, 3907 (amended 2001) (current version at Tex. Fam. Code Ann. Â§
157.265(c) (Vernon 2002)).  Vannatta cites only the 2001 amendment to section 157.265(c)
(reducing the applicable rate to 6 percent) as support for his contention.
Â Â Â Â Â Â Vannatta argues that the court could have somehow ordered him to pay retroactive child
support without reducing the retroactive support award to judgment.  However, he fails to
explain how the court could have rendered an enforceable order for retroactive child support
without reducing that order to judgment.
Â Â Â Â Â Â The court would have abused its discretion if it had failed to correctly apply the applicable
law in this case.  See Kuntz, 124 S.W.3d at 181; Stevens, 84 S.W.3d at 722; D.S., 76 S.W.3d
at 516.  Vannattaâs twelfth issue is overruled.
HEALTH CARE EXPENSES
Â Â Â Â Â Â Vannatta contends in his thirteenth through fifteenth issues respectively that the court
abused its discretion by ordering him to reimburse Kolacek for prenatal and postnatal health
care expenses because: (1) Kolacek failed to lay a proper predicate for the admission of
testimony she offered in support of the claim; (2) the record contains no evidence or factually
insufficient evidence to support the amount of health care expenses for which reimbursement
was ordered; and (3) it was inequitable for the court to require Vannatta to pay for health care
expenses because he had a policy of health insurance in place which would have covered these
expenses had Kolacek timely notified him of J.C.K.âs birth.
Â Â Â Â Â Â Kolacek offered in evidence properly authenticated business records to prove a portion of
the health care expenses.  For the remainder of the expenses, she provided testimony, relying
to some degree on written summaries prepared by her attorney.  Kolacek testified that she
brought receipts, cancelled checks, and other documents detailing these expenses to the
attorney who compiled the expenditures in two lists.  The first of these lists, admitted as
Defendantâs Exhibit 6, details $12,985 in health care expenses.  $7,113 of these expenses are
documented by other exhibits admitted in evidence.  Kolacek provided testimony to
substantiate the other $5,872 referenced in this list.  Vannattaâs counsel repeatedly objected to
Kolacekâs testimony on the basis that her testimony is not the best evidence of these expenses
and that documentary evidence should be offered to prove the expenses.
Â Â Â Â Â Â Kolacek also testified about the average monthly expenses she incurred in caring for
J.C.K.  She referred to a document, later admitted in evidence as Petitionerâs Exhibit P-43, 
prepared by her attorney as she testified.  Vannattaâs counsel again objected that Kolacekâs
testimony is not the best evidence of these expenses and that supporting documents should be
offered to prove the expenses.  The court overruled the objection and granted Vannatta a
running objection.  Kolacek testified about her average monthly expenses from J.C.K.âs birth
through the date of the hearing.  At the conclusion of Kolacekâs testimony, the court admitted,
over Vannattaâs objection, Petitionerâs Exhibit P-43.
Â Â Â Â Â Â Kolacekâs testimony (supported by the exhibit) claims average monthly expenses from
1984 to 1989 of $89 for medical care and $20 for medications.  From 1990 to 1995, she claims
average monthly expenses of $20 for medical care and $10 for medications.  From 1996 to
1998, she claims average monthly expenses of $72 for medical care and $10 for medications.

Â Â Â Â Â Â Vannatta characterizes Kolacekâs testimony as the equivalent of a summary of the contents
of voluminous writings as contemplated by Rule of Evidence 1006.  See Tex. R. Evid. 1006. 
Thus, he contends that, consistent with Rule 1006, the voluminous writings themselves (i.e.,
Kolacekâs receipts, etc.) should have been made available to him for inspection.  Kolacek
counters that she testified from personal knowledge and characterizes the documents as
writings used to refresh her memory under Rule of Evidence 612.
 Id. 612.
Â Â Â Â Â Â A witness with personal knowledge may testify to expenses incurred without providing
documentation to substantiate the testimony.  See Cockrell v. Republic Mortg. Ins. Co., 817
S.W.2d 106, 112 (Tex. App.âDallas 1991, no writ); Jackman v. Jackman, 533 S.W.2d 361,
362 (Tex. Civ. App.âSan Antonio 1975, no writ); 2 Steven Goode et al., Guide to the
Texas Rules of Evid Â§ 1002.1 (3d ed. 2002).  Kolacek stated on several occasions that she
was testifying from personal knowledge with regard to the health care expenses.  Kolacekâs
counsel made copies of the summaries available to Vannattaâs counsel during trial.  See Tex.
R. Evid. 612.  Thus, we conclude that the court did not abuse its discretion by permitting
Kolacek to testify about her health care expenses or by permitting her to refer to the summaries
during her testimony.  Vannattaâs thirteenth issue is overruled.
Â Â Â Â Â Â Kolacekâs testimony provides some evidence and factually sufficient evidence to support
the courtâs award of prenatal and postnatal health care expenses.  Accordingly, Vannattaâs
fourteenth issue is overruled.
Â Â Â Â Â Â Even though Kolacek did not notify Vannatta that she had given birth, the fact that
Vannatta knew she was pregnant and that he may be the father of the child is some evidence
from which the court may have concluded that Vannatta bears some responsibility for the delay
in the initiation of parentage proceedings.  Therefore, we cannot say that the court abused its
discretion by ordering Vannatta to pay a portion of Kolacekâs prenatal and postnatal health care
expenses.  Vannattaâs fifteenth issue is overruled.
ATTORNEYâS FEES
Â Â Â Â Â Â Vannatta contends in his sixteenth and seventeenth issues respectively that the court abused
its discretion by characterizing the trial attorneyâs fees awarded as child support because this is
not a proceeding to recover delinquent child support and because the characterization would
subject him to a constitutionally-prohibited imprisonment for debt if he failed to pay as
ordered.
Â Â Â Â Â Â The portion of the courtâs order at issue states as follows:
The court finds that Respondent, THOMAS JAKE VANNATTA, should be
ordered to pay a portion of KERRIE KOLACEKâS attorneyâs fees in the sum of Five
Thousand and no/100ths Dollars ($5,000.00) and GRANTS JUDGMENT against
Respondent in favor of STEPHEN N. SMITH in that amount, with interest at the rate
of ten percent (10%) per annum.  IT IS ORDERED that the attorneyâs fees, which
were incurred in relation to the child and are in the nature of child support, are taxed
as costs, and Respondent, THOMAS JAKE VANNATTA, is ORDERED to pay said
judgment by paying STEPHEN N. SMITH . . . by cash, cashierâs check, or money
order the sum of $50 per month, beginning June 15, 2001, payable on or before that
date and on or before the same day of each month thereafter until the judgment is paid
in full.

Â Â Â Â Â Â A court may order the payment of attorneyâs fees as costs in any suit affecting the parent-child relationship.  See Act of Apr. 11, 1997, 75th Leg., R.S., ch. 15, Â§ 2, 1997 Tex. Gen.
Laws 55, 55 (amended 2003) (current version at Tex. Fam. Code Ann. Â§ 106.002(a) (Vernon
Supp. 2004)); Goheen v. Koester, 794 S.W.2d 830, 836 (Tex. App.âDallas 1990, writ
denied).
Â Â Â Â Â Â Generally an attorneyâs fee award cannot be enforced by contempt because of the
constitutional prohibition against imprisonment for debt.  See Tex. Const. art. I, Â§ 18;
Wallace v. Briggs, 162 Tex. 485, 488-89, 348 S.W.2d 523, 525-26 (1961); In re Moers, 104
S.W.3d 609, 611 (Tex. App.âHouston [1st Dist.] 2003, no pet.).  However, attorneyâs fees
awarded in a proceeding to enforce a child support order can be enforced by contempt.  See Ex
parte Helms, 152 Tex. 480, 486, 259 S.W.2d 184, 188 (1953); Moers, 104 S.W.3d at 611.
Â Â Â Â Â Â This is not a proceeding to enforce a child support order.  Thus, the trial court should not
have characterized the attorneyâs fee award as being âin the nature of child support.â 
Accordingly, we will modify that portion of the judgment by deleting the phrase, âwhich were
incurred in relation to the child and are in the nature of child support.â  Vannattaâs sixteenth
issue is sustained.  We do not reach his seventeenth issue.
CONCLUSION
Â Â Â Â Â Â We affirm those portions of the judgment awarding retroactive child support and
reimbursement for prenatal and postnatal health care expenses.  We modify that portion of the
judgment awarding trial attorneyâs fees by deleting the phrase, âwhich were incurred in
relation to the child and are in the nature of child support,â and affirm that portion of the
judgment as modified.
Â Â Â Â Â Â We reverse that portion of the judgment awarding prospective child support and remand
this cause to the trial court for further proceedings consistent with this opinion.
Â 
FELIPE REYNA
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice
Before Chief Justice Gray,
Â Â Â Â Â Â Justice Vance, and
Â Â Â Â Â Â Justice Reyna

Â Â Â Â Â Â (Chief Justice Gray concurring in part and dissenting in part)
Affirmed in part,
reversed and remanded in part
Opinion delivered and filed May 12, 2004
[CV06]

ass=term1>authorities to support her
contentions.  We will not make MayfieldÂs arguments for her.Â  Because these
allegations are inadequately briefed, they are waived.Â  See Tex. R.
App. P. 38.1(h)
and (i); see also Wyatt, 23 S.W.3d at 23 n.5;
Johnson v. State, 263 S.W.3d 405, 416-17 (Tex. App.ÂWaco
2008, pet. refÂd).
The judgment is affirmed.Â Â Â  
Â  


FELIPE REYNA
Justice
Before Chief
Justice Gray,
Justice
Reyna, and
Justice
Davis
Affirmed
Opinion
delivered and filed July 28, 2010
Do not publish
[CR25]



[1] Â Â Â Â Â Â Â Â Â Â Â Â Â  Mayfield contends that
the trial court refused to conduct hearings on her pre-trial motions for
StateÂs witnesses and disclosure of expert witnesses.Â  The trial court held two
different pre-trial hearings, during which Mayfield could have urged her
motions.
Â 


[2] Â Â Â Â Â Â Â Â Â Â Â Â Â  At most, Mayfield
challenged statements regarding the cashing of checks in 2002.Â  The record is
unclear as to which statements Mayfield refers.


[3] Â Â Â Â Â Â Â Â Â Â Â Â Â  Mayfield contends that she
received a running objection to the admission of extraneous-offense evidence.Â 
According to the record, however, standby counsel requested a contemporaneous
limiting instruction to accompany the admission of each extraneous offense.Â 
The trial court granted a running objection to any instance where no contemporaneous
limiting instruction was given.Â  Mayfield neither requested nor received a
running objection to admission of extraneous-offense evidence itself.


