                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-18-00551-CV

                                     James Brent MANSFIELD,
                                             Appellant

                                                  v.

                                     Stormie Rae MANSFIELD,
                                              Appellee

                     From the 166th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2017-CI-17710
                           Honorable Stephani A. Walsh, Judge Presiding

                            OPINION ON MOTION FOR REHEARING
Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Beth Watkins, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: November 20, 2019

AFFIRMED

           On our own motion, we withdraw the opinion and judgment issued in this appeal on

October 9, 2019, and substitute this opinion and judgment in their stead.

           James Brent Mansfield (“Brent”) appeals a final decree of divorce. In his first issue on

appeal, Brent contends the trial court erred in including the monthly payments he receives from a

pre-marital structured settlement annuity in the amount of his net resources. In his second and

third issues, Brent contends the trial court erred in calculating the amount of child support and
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medical support he was ordered to pay. Finally, Brent contends the trial court erred in awarding

conditional appellate attorney’s fees to the appellee. We affirm.

                                                 BACKGROUND

           In 2010, Brent was involved in a work-related accident. In 2014, Brent entered into a

settlement agreement with his employer. As part of the settlement, Brent’s employer paid a

structured settlement company $1,750,000 which the structured settlement company used to

purchase a Single Premium Annuity Contract. Under the terms of the annuity contract, Brent

receives $6,970 per month. The payments began on July 1, 2014, and end on the later of: (1) the

date of Brent’s death; or (2) June 1, 2044 (360 months). The structured settlement company is the

owner of the annuity contract.

           Brent and Stormie were married on November 12, 2016, and they had one daughter, A.M.,

who was born on June 16, 2017. On September 14, 2017, Stormie filed the underlying divorce

proceeding. The only issues upon which the parties did not agree and that were submitted to the

trial court for a decision were whether and what amount of child support and medical support the

parties would be ordered to pay.

           On April 10, 2018, the trial court held a hearing on temporary orders and concluded the

annuity payments received by Brent were resources under section 154.062 of the Texas Family

Code. 1 In entering the final divorce decree, the trial court also included the annuity payments in

Brent’s resources for purposes of calculating the child support and medical support the trial court

ordered Brent to pay.




1
    The hearing on the temporary orders was presided over and the ruling was made by the Honorable Renée A. Yanta.


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            INCLUSION OF STRUCTURED SETTLEMENT ANNUITY IN NET RESOURCES

       In his first issue, Brent contends the trial court erred in calculating his net resources to

include the monthly annuity payments. In his second and third issues, Brent contends that if the

trial court erred in including the monthly annuity payments in calculating his net resources, then

the trial court erred in calculating the amount of child support and medical support Brent was

ordered to pay.

       Generally, we review issues regarding child support and medical support under an abuse

of discretion standard. See Ochsner v. Ochsner, 517 S.W.3d 717, 721 (Tex. 2016); Alvarez v.

Alvarez, No. 04-13-00787-CV, 2015 WL 1938700, at *1 (Tex. App.—San Antonio Apr. 29, 2015,

no pet.) (mem. op.); Brendel v. Brendel, No. 04-08-00883-CV, 2009 WL 3789604, at *9 (Tex.

App.—San Antonio Nov. 11, 2009, no pet.) (mem. op.). However, “[a] trial court has no

‘discretion’ in determining what the law is or applying the law to the facts.” Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992). Whether the annuity payments in this case are included in the

statutory definition of “resources” under section 154.062 of the Texas Family Code presents an

issue of statutory construction which is a question of law that we review de novo. Colorado County

v. Staff, 510 S.W.3d 435, 444 (Tex. 2017).

       “When construing a statute, our primary objective is to give effect to the Legislature’s

intent.” Id. “We seek that intent ‘first and foremost’ in the statutory text.” Id. “Where text is

clear, text is determinative.” Ochsner, 517 S.W.3d at 720. “[C]ourts must construe [a] statute’s

words according to their plain meaning because changing the meaning of [a] statute by adding

words to it . . . is a legislative function, not a judicial function.” Ferreira v. Butler, 575 S.W.3d

331, 337 (Tex. 2019) (internal quotation marks omitted). Stated differently, “[w]e cannot rewrite

[a] statute under the guise of interpreting it.” In re Ford Motor Co., 442 S.W.3d 265, 284 (Tex.

2014). Accordingly, a court’s interpretation of a statute must be one that “‘expresses only the will


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of the makers of the law, not forced nor strained, but simply such as the words of the law in their

plain sense fairly sanction and will clearly sustain.’” Ferreira, 575 S.W.3d at 337 (quoting

Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920)).

         In resolving Brent’s first three issues, we must construe the statutory definition of

“resources” in section 154.062 to determine if the trial court erred in including the monthly annuity

payments in Brent’s resources for purposes of calculating the amount of child support and medical

support the trial court ordered Brent to pay. Under section 154.062, the term “resources” is defined

to include “all other income actually being received, including . . . annuities . . . .” TEX. FAM.

CODE ANN. § 154.062(b)(5). However, “[r]esources do not include return of principal or capital.”

Id. § 154.062(c)(1).

         In arguing the trial court erred in including the monthly annuity payment as resources,

Brent primarily relies on the Waco court’s decision in In re A.A.G., 303 S.W.3d 739 (Tex. App.—

Waco 2009, no pet.). 2 In that case, “[t]he trial court excluded monies received from an annuity

created from the proceeds of a personal injury settlement by creating a distinction between an

annuity and a settlement annuity for purposes of determining net resources under Texas Family

Code Section 154.062.” Id. at 740. After reviewing the dictionary definition of “annuity,” the

Waco court noted “there are multiple definitions of an annuity,” and “there are also many types of

annuities for different purposes.” Id. at 741. The Waco court then reviewed the dictionary

definition of “principal” and stated the issue presented was whether the amounts received from the




2
  Brent also cites Mathis v. Mathis, No. 12-17-00049-CV, 2018 WL 1324777 (Tex. App.—Tyler Mar. 15, 2018, no
pet.) (mem. op.). In that case, however, the court held, “Allowing an award for spousal maintenance based on
Randall’s personal injury settlement is inconsistent with the legislative intent that spousal maintenance be an award
from future income of a spouse.” Id. at *7. Accordingly, the issue decided in Mathis is readily distinguishable from
the issue presented in the instant case.


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annuity “constitute[d] a return of principal, which is not a resource, or whether it constitute[d]

income that would be included as a resource.” Id.

         The Waco court then examined the nature of an annuity, asserting:

             All annuities have three critical components. For the payment of a sum of
         money by one person or entity, the recipient of the payment will pay money to
         another person the amounts on the dates agreed to in the annuity contract. Thus,
         the three critical elements are (1) the receipt of money, (2) the passage of time, and
         (3) the payment or return of money. Inherent in this process is the inclusion of
         interest for the acceptance of the payout of the settlement over time.

Id. The Waco court then held the trial court erred in excluding the entire annuity payment, holding

the trial court was required to decide “what portion of the payments being received represent[ed]

a return of principal and what portion represent[ed] the interest being earned for the use or

forbearance of the entire amount of the settlement proceeds.” Id. at 741-42. Thus, the Waco court

concluded the trial court should only have excluded the portion of the annuity payment

representing a return of principal. 3 Id. at 741 & n.1 (explaining the court was not reaching “the

question of whether any portion of the annuity payment actually represents a return of principal

because the record [was] not clear about the financial arrangements regarding the settlement and

resulting purchase of the annuity”). 4

         We decline to follow the Waco court’s holding 5 because, as previously noted, “[w]here

text is clear, text is determinative.” Ochsner, 517 S.W.3d at 720. And, we must give the words

of a statute their plain meaning without adding to the words under the guise of statutory



3
  In his brief, Brent also cites this court’s opinion in Mora v. Mora, No. 04-12-00638-CV, 2014 WL 769441 (Tex.
App.—San Antonio Feb. 26, 2014, no pet.) (mem. op.), to support his position. In Mora, however, this court only
addressed whether an annuity was separate property or community property. Id. at *9. Here, the parties do not dispute
that the annuity is Brent’s separate property.
4
  Stormie asserts in her brief that even under the Waco court’s analysis, some portion of the monthly annuity payments
would be included as resources because $1,750,000 ÷ $6,970 = 251 payments, but the annuity contract could extend
as long as 360 payments.
5
  “[O]pinions from our sister courts are not binding on this court.” In re Commitment of Mares, 521 S.W.3d 64, 71
(Tex. App.—San Antonio 2017, pet. denied).


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interpretation. Ferreira, 575 S.W.3d at 337; In re Ford Motor Co., 442 S.W.3d at 284. Here, the

legislature included all income received from annuities in the definition of the term “resources,”

without drawing any distinction between a settlement annuity and any other type of annuity. If

the legislature had intended to draw a distinction between different types of annuities, it could have

done so. 6 Therefore, we hold the trial court did not err in including the monthly annuity payments

to Brent in calculating his resources, and we overrule Brent’s first issue. Because Brent’s second

and third issues are premised on the contention that the trial court erred in including the monthly

annuity payments in Brent’s resources for purposes of calculating the child support and medical

support the trial court ordered him to pay, we also overrule Brent’s second and third issues. 7

                                         APPELLATE ATTORNEY’S FEES

         In his fourth issue, Brent contends the trial court erred in awarding Stormie $10,000 in

conditional appellate attorney’s fees.




6
  We also note a “return” of principal implies an initial outlay of principal by the person to whom the principal is
“returned.” In this case, the structured settlement company paid the money required to purchase the annuity contract
and is the owner of the annuity; however, its initial outlay of money was not being “returned” to the company.
Although the Texas Supreme Court has repeatedly admonished courts should not resort to additional construction
aids, such as legislative history, where clear statutory text is determinative, see Univ. of Tex. at El Paso v. Herrera,
322 S.W.3d 192, 198 n.39 (Tex. 2010); Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867-68 (Tex.
2009), we further note prior to the recodification of the Family Code in 1995, section 14.053(b) defined net resources
as including “all other income actually being received, including but not limited to . . . annuities, . . . interest income
from notes but not including return of principal or capital, . . . .” In re Z.M.R., No. 13-11-00592-CV, 2012 WL
8013977, at *4 n.3 (Tex. App.—Corpus Christi Nov. 29, 2012, no pet.) (mem. op.) (quoting text of section 14.035(b));
see also Farish v. Farish, 921 S.W.2d 538, 543 (Tex. App.—Beaumont 1996, no writ) (holding phrase “return of
principal or capital” in section 14.053(b) “refers to the return of principal or capital on a note”). The legislative history
from the 1995 recodification reveals that the recodification of section 14.035(b) was intended as a nonsubstantive
recodification. See House Comm. on Juvenile Justice & Family Issues, Bill Analysis, Tex. H.B. 655, 74th Leg. R.S.
(1995); Senate Comm. on Jurisprudence, Bill Analysis, Tex. C.S.H.B. 433, 74th Leg. R.S. (1995); Jones v. Fowler,
969 S.W.2d 429, 431-32 (Tex. 1998). Accordingly, in recodifying section 14.035(b) to add subsection headings in
section 154.062, thereby listing “interest income from notes” as being included in resources while listing “return of
principal or capital” as being excluded from resources, the Legislature only meant to clarify the phrase “interest
income from notes but not including return of principal or capital,” not to substantively change its meaning.
7
  The trial court made alternative findings of fact which it found would “warrant an above guideline award of child
support in the event that the Court finds that the fathers [sic] net resources found by this court are less than $9,528.13.”
Although Brent challenges these alternative findings in his brief, we need not address the alternative findings because
we hold the trial court did not err in including the monthly annuity payments in calculating Brent’s net resources.


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       “[A] suit for divorce in which the parties are parents of minor children necessarily includes

a suit affecting the parent-child relationship (‘SAPCR’).” Diaz v. Diaz, 350 S.W.3d 251, 256 (Tex.

App.—San Antonio 2011, pet. denied). “In a cause involving both a divorce proceeding and a

SAPCR, a trial court has broad discretion in awarding attorney’s fees, expenses and costs under

sections 6.708, 106.001, and 106.002 of the Family Code.” Id. “A movant must affirmatively

plead for attorneys’ fees unless the issue is waived or tried by consent.” In re T.L.T., No. 05-16-

01367-CV, 2018 WL 1407098, at *4 (Tex. App.—Dallas Mar. 21, 2018, no pet.) (mem. op.) (citing

In re Pecht, 874 S.W.2d 797, 803 (Tex. App.—Texarkana 1994, no writ)).

       Brent first asserts the award of appellate attorney’s fees was not supported by the pleadings;

however, Stormie responds the issue of appellate attorney’s fees was tried by consent. At the end

of the trial proceeding, after the trial court stated that one or both sides mentioned appeals, the

following exchange occurred:

           THE COURT: And so is there any evidence or testimony or request with
       regards to appellate attorney’s fees?
           I’ll start with you, [Brent’s attorney].
           [Brent’s attorney]: We’re not seeking appellate attorney’s fees from anyone.
           THE COURT: Okay. [Stormie’s attorney]?
           [Stormie’s attorney]: We would seek attorney’s fees if it’s an unsuccessful
       appeal, yes.
           THE COURT: Okay. Do you have any evidence, testimony or requests?
           [Brent’s attorney]: I have — were you asking — addressing —
           THE COURT: [Stormie’s attorney].
           [Brent’s attorney]: Okay.
           [Stormie’s attorney]: Your Honor, my request would be $10,000 to appeal to
       the Court of Appeals.
           THE COURT: Cross or questioning, [Brent’s attorney], on that issue of
       $10,000 being a reasonable fee for appeal?
           [Brent’s attorney]: If it’s conditioned upon us being unsuccessful and them
       being successful, I do a lot of those, and that figure is certainly within the strike
       zone.

Because Brent’s attorney did not object to the absence of any pleadings when the trial court

addressed the issue of an award of appellate attorney’s fees, we hold the issue was tried by consent.



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Furthermore, the trial court accepted the statement by Stormie’s attorney as testimony that $10,000

would be a reasonable fee for an appeal. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997)

(holding attorney’s unsworn statements to the court constitute evidence if no objection is made to

the trial court’s failure to administer oath); Keith v. Keith, 221 S.W.3d 156, 169-70 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (holding party waived oath requirement where attorneys’

responses to trial court’s questioning regarding appellate attorney’s fees indicated attorneys were

tendering evidence “based on personal knowledge of appellate attorney’s fees”). Finally, Brent’s

attorney conceded $10,000 was a reasonable fee. Accordingly, we overrule Brent’s assertion that

the award of appellate attorney’s fees was not supported by the pleadings because we hold the

issue was tried by consent.

       Brent next contends the trial court erred in awarding the appellate attorney’s fees in the

absence of evidence that such fees were necessary to preserve and protect the safety and welfare

of A.M. In support of his contention, Brent cites section 109.001 of the Texas Family Code and

In re Wiese, No. 03-15-00062-CV, 2015 WL 4907030, at *1 (Tex. App.—Austin Aug. 12, 2015,

orig. proceeding) (mem. op.), both of which address an award of attorney’s fees in temporary

orders during the pendency of an appeal. The attorney’s fees in this case, however, were awarded

in the final decree of divorce, not in temporary orders. As previously noted, “[i]n a cause involving

both a divorce proceeding and a SAPCR, a trial court has broad discretion in awarding attorney’s

fees, expenses and costs under sections 6.708, 106.001, and 106.002 of the Family Code.” Diaz,

350 S.W.3d at 256. And, “[t]he trial court’s award of attorney’s fees may include appellate

attorney’s fees” as long as the award is “conditioned on which party prevails on appeal.” In re

T.L.T., 2018 WL 1407098, at *5 (citing Keith, 221 S.W.3d at 169). Therefore, because the award

of appellate attorney’s fees in the instant case was in the final decree of divorce and not in




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temporary orders, Stormie was not required to support the award with evidence that such fees were

necessary to preserve and protect the safety and welfare of A.M.

       Brent’s fourth issue is overruled.

                                            CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Liza A. Rodriguez, Justice




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