                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00159-CV


IN THE INTEREST OF C.T. AND
R.T.




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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 323-96578J-12

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                        MEMORANDUM OPINION1

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      In this appeal, S.T. argues that the trial court abused its discretion by

ordering him to pay child support in the amount of $220 per month for the support




      1
       See Tex. R. App. P. 47.4.
of his two children, C.T. and R.T. (the children). Finding no abuse of discretion,

we affirm the trial court’s order.2

        This case arose from a suit affecting the parent-child relationship filed by

the Texas Department of Family and Protective Services (DFPS) on May 18,

2012.       On April 18, 2013, the trial court granted DFPS’s motion to modify

managing conservatorship of the children, appointed E.T., the children’s mother,

the permanent managing conservator of the children, and adjudged S.T. to be

their father.    The trial court further ordered S.T. to pay child support in the

amount of $220 per month for the support of the children. Finally, the trial court

dismissed DFPS’s claims seeking parental-rights termination.

        In a sole issue, S.T. argues that the trial court abused its discretion by

ordering him to pay child support and that the evidence is legally and factually

insufficient to support the trial court’s order. Specifically, he asserts that the trial

court abused its discretion by ordering him to pay child support because DFPS

was not named a conservator of the children and because he is legally married to

E.T.



        2
        This appeal was originally submitted without oral argument on December
31, 2013, before a panel consisting of Justice Gardner, Justice Dauphinot, and
Justice Walker. See Tex. R. App. P. 39.8; 2nd Tex. App. (Fort Worth) Loc. R.
3B(2). The court, on its own motion on June 10, 2014, ordered this appeal
resubmitted without oral argument on July 1, 2014, and assigned the appeal to a
new panel, consisting of Justice Dauphinot, Justice Walker, and Justice Gabriel.



                                           2
      We review a child-support order for an abuse of discretion. Worford v.

Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Under this standard, we determine

whether the court acted without reference to any guiding rules or principles; thus,

challenges to the sufficiency of the evidence are not independent grounds of

error but are relevant factors in assessing whether the trial court abused its

discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.

1985); In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.—Houston [14th Dist.] 2002,

no pet.).

      S.T. first asserts that the trial court may not order child-support payments

for the support of a child unless DFPS is named the temporary or permanent

managing conservator of the child.     See Tex. Fam. Code Ann. § 154.001(b)

(West 2014). But the child-support statute allows trial courts to “order either or

both parents to support a child” and does not limit that power only to cases where

DFPS is named a managing conservator. See id. § 154.001(a). Further, S.T., as

the children’s father, has several rights and duties, including the duty to support

the children; thus, the fact that DFPS was a party to the original suit does not

discharge S.T.’s statutory duty to support the children. See id. § 151.001(a)(3)

(West 2014).

      Viewing the evidence most favorably to the fact-finder, the trial court

ordered S.T. to pay child support to E.T. within the guiding rules of section




                                        3
154.001(a). See id. § 154.001(a).3 S.T.’s argument that the court can order child

support in this case only when DFPS is named temporary or permanent

managing conservator misinterprets the court’s broad latitude under section

154.001 to order support from either parent. See id. § 154.001.4

      S.T. next argues that the trial court abused its discretion by ordering child

support because S.T. and E.T. “have been legally married since 2008 and

continue to be legally married although they do live separate and apart.” In his

brief, S.T. “affirms to this Court that [E.T.] and he have been legally married since

2008 although they live separate and apart.” E.T. states in her brief that “S.T.

was not residing with the mother when the final order setting child support was

entered by the Court.” Neither include any citations to the record to support

these statements.


      3
        One commentary on this section explained that “Subsection (a) is as
simple and straight forward as any provision in the Family Code. It mandates
that either or both parents must support their child . . . .” John J. Sampson, Harry
L. Tindall, et al., Sampson & Tindall’s Texas Family Code Annotated § 154.001
cmt. (West 2012) (emphasis added).
      4
        While DFPS pleaded for S.T. to be ordered to pay child support under
section 154.001(b) in its written motion, it was within the trial court’s discretion to
order child support consistent with section 154.001(a). Tex. Fam. Code Ann.
§ 154.001; White v. Adcock, 666 S.W.2d 222, 225 (Tex. App.—Houston [14th
Dist.] 1984, no writ). A court may order child support without any request for it in
the pleadings. In re M.J.W., No. 13-11-228-CV, 2011 WL 4562871, at *2 (Tex.
App.—Corpus Christi 2011, no pet.) (mem. op.); see also Boriack v. Boriack, 541
S.W.2d 237, 242 (Tex. Civ. App.—Corpus Christi 1976, no writ) (“In matters
concerning the support of children the paramount concern of the court is the best
interest of the children and the technical rules of pleading and practice are of little
importance.”).

                                          4
      In the child-service plans entered in 2012, it was noted that S.T. and E.T.

were “currently married but have been separated for one year[.] [T]hey have

been married 3-4 years now.” At the time DFPS filed suit in November 2012,

E.T. lived in Texas with the children, and S.T. lived in Alabama or Florida. In

seeking termination of S.T.’s parental rights, DFPS alleged that S.T. had

constructively abandoned the children. At the trial court’s April 18, 2013 hearing

on DFPS’s motion to modify conservatorship, S.T.’s counsel stated that S.T. was

living in New York. Therefore, the record shows that although E.T. and S.T.

could have been married at the time of the child-support order, S.T. had not lived

with E.T. or the children since 2011 and, indeed, lived in a different state.

      In any event, the marital status of E.T. and S.T. does not determine

whether S.T. can be required to pay child support. See id. § 154.010 (West

2014). A child-support obligation is determined by examining the best interests

of the child, including the circumstances of the parents. See id. §§ 154.121–.123

(West 2014). S.T.’s argument is unfounded.

      The trial court did not abuse its discretion by ordering S.T. to pay child

support. We overrule S.T.’s sole issue and affirm the trial court’s order.



                                                    PER CURIAM

PANEL: GABRIEL, DAUPHINOT, and WALKER, JJ.

DELIVERED: July 17, 2014



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