                                   NO. 07-11-00109-CV

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL B

                                   FEBRUARY 27, 2012


                         IN THE INTEREST OF B.A.L., A CHILD


            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

         NO. 99-505,668; HONORABLE BRADLEY S. UNDERWOOD, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.



                                MEMORANDUM OPINION


       The Office of the Attorney General of Texas (the OAG) appeals the trial court’s

order on its petition to modify child support in which the trial court ordered that the father

pay $0 in child support. The OAG contends that the trial court abused its discretion by

so ordering. We will affirm.


                               Factual and Procedural History


       In 2000, William and Laura L. divorced.         Two daughters were born of their

marriage: A.N.L. and B.A.L. A.N.L. is emancipated and is not subject to the order at

issue in this appeal. B.A.L. was born in 1995 with cerebral palsy and airway stenosis.

She has received Supplemental Security Income (SSI) and Medicaid benefits since her
infancy. The divorce decree ordered William to pay $500.00 per month in support for

A.N.L. The decree was silent as to support for B.A.L.1


         In March 2010, the OAG sought modification of child support from William. The

associate judge determined that William should pay $492.00 per month in child support

for B.A.L., based on the finding that William had $2,459.00 in net monthly resources.

William sought a de novo hearing on the petition to modify in which he contended,

among other things, that ordering child support for B.A.L. is not in her best interest

because of the attendant reduction in B.A.L.’s SSI benefits.


         At the de novo hearing in October 2010, the trial court heard evidence that

William always paid the amount of child support ordered by the 2000 divorce decree for

A.N.L.       Additionally, the trial court heard evidence that William maintains, or had

maintained through summer 2010, nearly 50% custody of B.A.L. and that he provided a

good deal of her support in the form of providing for her needs in addition to food and

shelter while she was in his care.       William testified that he buys her clothes and

personal items, “everything that’s necessary.” He testified that he also paid half of any

medical expenses that were not covered by Medicaid.            Testimony at the de novo

hearing indicates that maintaining B.A.L.’s SSI and Medicaid benefits has long been a

concern for the family and efforts have been and are made to ensure that she continues

to receive these forms of assistance.



         1
        At the de novo hearing, William testified that he agreed to pay $500.00, an
amount he understood to be higher than the guidelines would have set, and that he
understood that the $500.00 was for the support of both children even though it was
designated as support solely for A.N.L.
                                             2
       Based on the evidence before it, the trial court ordered that William pay $0 in

child support and found that such an order was in B.A.L.’s best interest. The OAG

appealed, maintaining that the trial court abused its discretion by ordering that William

pay no support. William contends, as he did below, that his payment of court-ordered

child support is contrary to B.A.L.’s best interest. Though, at first glance, this seems a

rather harsh and contradictory position for William to take when the record suggests he

has been an involved and financially responsible father, his position on the matter is

driven by the family’s evident and long-standing concern that B.A.L. continue to receive

full SSI and Medicaid benefits. In other words, child support paid by court order will

reduce B.A.L.’s SSI payment and is, therefore, not in her best interest. Though less

than fully developed, it appears that he takes the position that the informal and direct

support he provides B.A.L. is in her best interest in that such informal support, unlike

court-ordered child support, does not reduce her SSI payments. Put another way, the

full SSI payments in addition to the informal support he provides yields a higher total

amount of support for B.A.L. than do the reduced SSI payment and the child support

paid per court order. He, therefore, contends that the trial court’s order that he pay $0

in child support for B.A.L. is in her best interest.


       The OAG, on the other hand, wants William to pay court-ordered child support for

B.A.L. In its first issue, it maintains that the trial court misinterpreted the impact court-

ordered child support would have on B.A.L.’s SSI and Medicaid benefits. Based on that

misinterpretation, the trial court abused its discretion by ordering no child support

because the reduced SSI payment, when added to the child support payment, is more


                                               3
than B.A.L.’s full SSI benefit. In its second issue, the OAG contends the trial court

abused its discretion by deviating from the child support guidelines.


                         Standard of Review and Applicable Law


       The trial court may modify an order that provides for the support of a child if the

following requirements are met:


       (1) the circumstances of the child or a person affected by the order have

       materially and substantially changed since . . . the date of the order’s

       rendition; or


       (2) it has been three years since the order was rendered or last modified

       and the monthly amount of the child support award under the order differs

       by either 20 percent or $100 from the amount that would be awarded in

       accordance with the child support guidelines.


TEX. FAM. CODE ANN. § 156.401(a) (West Supp. 2011). The OAG advanced both of

these bases in its petition to modify.2


       Each child support case stands on its own facts. Klise v. Klise, 678 S.W.2d 545,

546 (Tex.App.—Houston [14th Dist.] 1984, no writ). There are, however, principles


       2
         As a result of a previous petition brought by William seeking modification of
custody and support, the trial court signed an order on January 11, 2010. In it, the trial
court found that William’s child support obligation as to A.N.L. terminated on September
25, 2008, when A.N.L. moved in with William. This order, like the divorce decree, was
silent regarding William’s child support obligation for B.A.L. Though there was some
discussion as to whether the issue of support for B.A.L. was addressed in that
proceeding, the trial court ultimately concluded that it was not and that the January 2010
order did not modify William’s support obligation as to B.A.L.
                                            4
designed to provide the trial court with guidance in making child support determinations.

The amount of a child support payment established by the child support guidelines is

presumed reasonable, and an order of support conforming to the guidelines is

presumed in the best interest of the children. TEX. FAM. CODE ANN. § 154.122(a) (West

2008). But a trial court may deviate from the guidelines if it determines the guidelines

are unjust or inappropriate under the circumstances. Id. §§ 154.122(b), 154.123(a)

(West 2008). The Texas Family Code provides the trial court with several relevant

factors to consider in determining whether application of the guidelines would be “unjust

or inappropriate” under the circumstances, including the age and needs of the child; any

financial resources available for the support of the child; special or extraordinary

educational, health care, or other expenses of the child; the ability of the parents to

contribute to the support of the child; and any other reason consistent with the best

interest of the child, taking into consideration the circumstances of the parents. Id. §

154.123(b).


      In child support decisions, the “paramount guiding principle” of the trial court

should always be the best interest of the child. Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex.

2011) (citing Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3 (Tex. 1993)); see In re

Striegler, 915 S.W.2d 629, 635–36 (Tex.App.—Amarillo 1996, writ denied).             The

Legislature intended that courts exercise independent judgment in matters affecting

children, including the support obligation. Williams v. Patton, 821 S.W.2d 141, 143

(Tex. 1991). The trial court is afforded a great deal of discretion in resolving child

support issues. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re


                                           5
K.R.P., 80 S.W.3d 669, 674 (Tex.App.—Houston [1st Dist.] 2002, pet. denied). We

review the trial court’s resolution for an abuse of its discretion. Iliff, 339 S.W.3d at 78.


                                          Analysis


       We begin with a conclusion on which all parties seem to agree: any reported

court-ordered child support payment reduces the amount of B.A.L.’s SSI payment.3 The

evidence of such reduction is uncontroverted.


Trial Court’s Application of Law


       In its first issue, the OAG contends that the trial court abused its discretion by

misinterpreting federal law governing the modification of SSI benefits.            The OAG

maintains that the trial court misunderstood or miscalculated the impact of child support

payments on B.A.L’s SSI benefits because, otherwise, the trial court would understand

that the reduced SSI payment plus the court-ordered child support payment equals

more overall financial support for B.A.L. The OAG takes the position that the trial court

could not have found that more financial support is contrary to B.A.L’s best interest.


       In support of its position on appeal, the OAG presents the following

mathematically based contentions. If, as the associate judge ordered, William pays

$492.00 in monthly child support, B.A.L. would also receive approximately $284.00 in


       3
        It appears that the trial court also had some concern that court-ordered support
payments may, as additional income and resources, render B.A.L. ineligible for SSI
benefits. However, the record suggests that the court-ordered child support payment
had only the effect of reducing B.A.L.’s payment from approximately $600.00 to,
according to Laura, $288.00. The record is unclear as to what effect, if any, the court-
ordered child support payment had or could have on B.A.L.’s Medicaid eligibility or
benefits.
                                              6
reduced SSI benefits.4     So, under such an order, B.A.L. would receive, in overall

financial support, a total of $776.00 per month. The OAG contends that approximately

$776.00 is greater than approximately $600.00, the amount of her full SSI benefits.

And, on that, we cannot disagree.


       Initially, however, we observe that the issue of the precise impact child support

payments would have on B.A.L.’s SSI benefits was not directly presented to the trial

court. That is, the trial court was not presented with the relevant federal law and the

relevant evidence to have arrived at a conclusion regarding the precise impact child

support payments would have on SSI benefits. As a general rule, a reviewing court will

not conclude that a trial court abused its discretion on the basis of a theory not

presented to it. See TEX. R. APP. P. 33.1(a); San Jacinto Methodist Hosp. v. Bennett,

256 S.W.3d 806, 815 n.13 (Tex.App.—Houston [14th Dist.] 2008, no pet.) (observing

that trial court does not abuse its discretion for not considering grounds not presented to

it); Ellis v. McKinney, No. 01-00-01098-CV, 2001 Tex. App. LEXIS 7715, at *10

(Tex.App.—Houston [1st Dist.] Nov. 15, 2001, pet. denied) (not designated for

publication) (same). Because the proper application of federal law was not presented to

the trial court as such, we will not conclude that the trial court abused its discretion by

misinterpreting or misapplying federal law relating to calculation of SSI benefits.


       Further, contrary to the OAG’s contention, the record provides no indication that

the trial court failed to understand that, as a more general proposition, child support

payments would reduce SSI benefits.         Indeed, it appears that the trial court fully

       4
       We note the evidence that the reduced SSI payment received in the interim
between the hearings was $288.00.
                                             7
understood that child support payments would negatively impact SSI benefits and then

applied Texas family law principles to the facts of the case to ultimately conclude that

court-ordered child support and reduced SSI payments would not yield an overall higher

amount of resources for B.A.L.’s support. Even if the trial court could be said to have

ruled on the precise matter presented by the OAG and using the figures and principles

posed to the trial court for the first time in the motion for new trial, in order to conclude

that the trial court abused its discretion by not ordering formal child support, we would

have to conclude that the record established that William provides less than $176.00 in

informal or direct support for B.A.L. On this record, albeit a rather underdeveloped one,

the trial court could have concluded otherwise.


       Regardless of the OAG’s mathematically sound calculation, its contention is

premised on the assumption that William provides no other form of support–or less than

$176.00 per month–and such a premise has no basis in this record. So, the OAG may

well be correct in its calculation of reduced SSI payment plus child support payment, but

it fails to take into account the informal, direct support that the record reveals William

provides to B.A.L. William testified that he “help[s] raise her,” that he had custody of

B.A.L. for a significant percentage of time, that he provides for her well-being, and that

he makes certain she has “everything that’s necessary.”          The record indicates that

William is involved in B.A.L.’s life and her support.


       Based on the evidence before it, the trial court could have concluded that B.A.L.

benefited most, in any number of ways, by receiving her full SSI benefit and the informal

and direct support from William. Contrary to the OAG’s contention, it does not appear

                                              8
that the trial court misinterpreted the impact that court-ordered child support payments

would have on B.A.L.’s SSI payment.           Instead, the trial court appears to have

considered that impact and concluded, based on evidence before it, that it was in

B.A.L.’s best interest to receive the full SSI payment in addition to the informal and

direct support from William. Based on this record, the trial court did not abuse its

discretion in doing so. We overrule the OAG’s first issue.


Deviation from the Guidelines


       Again, generally, child support ordered in a manner consistent with the guidelines

is presumed to be in the best interest of the child.         See TEX. FAM. CODE ANN. §

154.122(a). However, the trial court may deviate from the child support guidelines if it

determines the guidelines are unjust or inappropriate under the circumstances. Id. §§

154.122(b), 154.123(a). The trial court can consider a number of factors in determining

whether the evidence supports a deviation from the guidelines. See id. § 154.123(b).


       Here, the trial court deviated from the child support guidelines by ordering no

child support. We look again to the record to determine whether the trial court abused

its discretion by determining that compliance with the guidelines on these facts was

“unjust or inappropriate.” We remain mindful that the determination should always be

guided by the best interest of the child. See Iliff, 339 S.W.3d at 81.


       The record shows that William consistently paid child support under the previous

order and testified that he provides B.A.L. with “clothes, food, all the essentials.”

Further, he pays for the household expenses associated with his care and custody of

B.A.L. He also pays half of her uncovered medical expenses and contributes to her
                                             9
upbringing both financially and directly by helping to “raise her.” He added that he buys

her gifts and that she has “everything she needs and everything she wants.” Laura’s

testimony does not contradict William’s.


       After hearing testimony, the trial court found as follows:


       Number one, there has not been a material and substantial change in the

       circumstances of the child. Good cause exists to deviate from the child

       support guidelines because of medical needs of the child and because the

       child’s income from Medicaid and SSI. It is in the best interest of the child

       to order child support in the amount of zero from [William].


Later, the trial court continues:


       [William], you do have an obligation to take care of your daughter. I’m not

       making any ruling with regard to formal child support. My opinion is that

       you are helping with your daughter. You need to continue to do so in any

       way that you can. She’s still your daughter. You need to help.


William agreed. The trial court further explained and admonished: “So just because I’m

not ordering formal child support doesn’t mean you shouldn’t be helping out.” The law

has long recognized that parents have a legal duty to support their children during their

minority. Iliff, 339 S.W.3d at 81 (citing In re Henry, 154 S.W.3d 594, 596 (Tex. 2005)

(per curiam)). And the trial court, despite not entering a formal order that William pay

child support, recognizes this duty.



                                             10
       From the record, it appears both William and Laura are committed, involved

parents and want what is best for B.A.L. On these facts, the trial court was within its

discretion to find that, despite not having a court order that directs William to pay a

certain amount of child support, he does provide child support by providing food,

clothing, shelter, personal and household goods, and medical expenses for B.A.L.

Based on the history of informal and direct support by William, the trial court concluded

that a court-ordered payment of child support and the attendant reduction in SSI

benefits would not be in B.A.L.’s best interest. That is, the trial court concluded that the

full SSI benefit payment and the informal and direct support from William provided

B.A.L. with the most financial support and was, therefore, in her best interest. The trial

court was authorized to consider B.A.L.’s needs, financial resources available for her

support, and the amount of each parent’s custody of B.A.L. See TEX. FAM. CODE. ANN.

§ 154.123(b). The trial court also considered the negative impact ordering child support

would have on B.A.L.’s SSI payment, that reduction being another reason consistent

with her best interest. See id. § 154.123(b)(17). The trial court, on these facts, acted

within its broad discretion by deviating from the child support guidelines. Accordingly,

we overrule the OAG’s second and final issue.


                                        Conclusion


       Having overruled both issues presented by the OAG, we affirm the trial court’s

judgment.


                                                        Mackey K. Hancock
                                                             Justice


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