It goes without saying that any good parent should support their children. However, one of the most hotly contested issues in any divorce or family matter suit where children are involved is the issue of child support. How is it paid? How do we determine the resources to pay? Who pays? How much? All of these questions are important both to the courts as well as the parties involved in a suit concerning these issues.
First, We must determine what support is required of parents in the State of Texas. "A parent has the duty to support a child, including providing the child with clothing, food, shelter, medical and dental care,” "and education. Tex. Fam. Code Ann. § 151.001(a)(3). See also In re Z.B.P., 109 S.W.3d 772, 781 (Tex. App.—Fort Worth""2003, no pet.).” The court may order either or both parents to support a child in the previously mentioned ways. This obligation for support continues (1) until the child is 18 years of age or until graduation from high school, whichever occurs later; (2) until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law; (3) until the death of the child; or (4) if the child is disabled, for an indefinite period. Lueg v. Lueg, 976 S.W.2d 308 (Tex. App.—Corpus Christi 1998, pet. denied) (error to order sole managing conservator father to pay child support to possessory conservator mother).
Additionally, there is no requirement that a child reside or spend time with a parent for a court to order child support. In other words, a court can order the obligation of support without ordering that the parent charged with this obligation ever see the child. However, A court may not render an order that conditions the payment of child support on whether a managing conservator allows a possessory conservator to have possession of or access to a child. Tex. Fam. Code Ann. § 154.011 and 153.001(b); Seidel v. Seidel, 10 S.W.3d 365 (Tex. App.—Dallas 1999, no pet.).
In determining whether child support is required, the court’s primary consideration is what is in the best interest of the child. Tex. Fam. Code Ann. § 153.002. This can often times be a vague and amorphous concept, but is the most important factor in determining issues of support.
The next issue is how to determine what resources are available to the parent charged with support. Resources for the purpose of establishing child support liability include: 100% of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips and bonuses); interest, dividends, and royalty income; self-employment income; net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including non cash items such as depreciation); severance pay; retirement benefits; pensions; trust income; annuities; capital gains; social security benefits other than SSI unemployment benefits; disability and workers' compensation benefits; interest income from notes regardless of the source; gifts and prizes; spousal maintenance; alimony; any other income actually received. In re L.R.P., 98 S.W.3d 312 (Tex. App.—Houston [1st Dist.] 2003, pet. dism'd) (college-student father's net resources include support by paternal grandparents of child).
The following are not included in determining net resources for the purpose of establishing child support liability: (1) return of principal or capital; (2) accounts receivable; (3) benefits paid in accordance with federal public assistance programs; and (4) payments for foster care of a child. The amount calculated here is not necessarily the same as adjusted gross income on a tax form because it might permit a double deduction for an item. Powell v. Swanson, 893 S.W.2d 161, 163 (Tex. App.—Houston [1st Dist.] 1995, no writ) (there was a double deduction of the self-employment tax and self-employed health insurance).
Once the net resources have been calculated, one must determine if there are any applicable deductions. The court must deduct the following items from resources to determine the net resources available for child support: (1) social security taxes; (2) federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction; (3) state income tax; (4) union dues; (5) expenses for the cost of health insurance or cash medical support for the obligor's child ordered by the court under Texas Family Code Section 154.182; and (6) if the obligor does not pay social security taxes, nondiscretionary retirement plan contributions.
In calculating the amount of the deduction for health care coverage for a child under Texas Family Code Section 154.062(d) (5), if the obligor has other minor dependents covered under the same health insurance plan, the court shall divide the total costs to the obligor for the insurance by the total number of minor dependents, including the child, covered under the plan.Tex. Fam. Code Ann § 154.062(e).
One question that is often asked is, “Can they consider the earnings of my new husband/wife in determining these resources?” The answer is, the court may not add any portion of the net resources of a spouse to the net resources of an obligor or obligee in order to calculate child support. Tex. Fam. Code Ann. § 154.069(a); In the Interest of Knott, 118 S.W.3d 899 (Tex. App.—Texarkana 2003, no pet.) (the statutory method for calculating child support was not designed to impose a duty on an obligor's spouse to support the obligor's children using the income of the obligor's spouse). Further the court may not subtract the needs of a spouse or of a dependent of a spouse, from the net resources of the obligor or obligee. Tex. Fam. Code Ann. § 154.069(b).
Now that we have calculated the net resources of a parent for the purposes of child support, it is time to determine the actual amount of support to be awarded. The Texas Family Code contains certain guidelines for the amount of support to be paid. These guidelines are presumed by the court to be reasonable, and an order of support conforming to the guidelines is presumed to be in the best interest of the child. Tex. Fam. Code Ann. § 154.122(a). This means that, if a party would like to deviate from the guidelines, they must overcome the presumption by the courts and show why deviation is in the best interest of the child.
In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court must consider evidence of all relevant factors, including: the child's age and needs; the parents' ability to contribute to the support of the child; any financial resources available for the support of the child; the amount of time of possession of and access to a child; the amount of the obligee's net resources; child care expenses incurred by either party in order to maintain gainful employment; whether either party has the managing conservatorship or actual physical custody of another child; the alimony or spousal maintenance actually and currently being paid or received by a party; the expenses for a child for education beyond secondary school; whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity; the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties; provision for health care insurance and payment of uninsured medical expenses; special or extraordinary educational, health care, or other expenses of the parties or child; the cost of travel necessary to exercise possession of and access to a child; positive or negative cash flow from any real and personal property and assets, including a business and investments; debts or debt service assumed by either party; any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents. Tex. Fam. Code Ann. § 154.123(b); Lide v. Lide, 116 S.W.3d 147 (Tex. App.—El Paso 2003, no pet.) (there was evidence to support the trial court's variation from the guidelines). In Lide, the court held that Section 154.123(b)(3) mandates that in determining whether application of the guidelines would be unjust or inappropriate, the court shall consider “any financial resources available for the support of the child.” There was evidence that the father had a contract to sell his vet business for $250,000 cash and a 10-year payout on a $200,000 note. The court found this was some evidence to support the trial court's variation from the guidelines and upheld a child support award of $2,500 per month even though the amount would be $1,664 applying the guidelines. See also In re E.A.S., 123 S.W.3d 565 (Tex. App.—El Paso 2003, no pet.). In re E.A.S., 123 S.W.3d 565 (Tex. App.—El Paso 2003, pet. denied).
Assuming, for the sake of this article, that the guidelines will the the determining amounts to be paid, how much are they? If the obligor's monthly net resources are not greater than $7,500, the court must apply the following schedule in rendering the child support order, Tex. Fam. Code Ann. § 154.125(b):
CHILD SUPPORT GUIDELINES
BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR
• 1 child 20% of Obligor's Net Resources
• 2 children 25% of Obligor's Net Resources
• 3 children 30% of Obligor's Net Resources
• 4 children 35% of Obligor's Net Resources
• 5 children 40% of Obligor's Net Resources
• 6+ children—Not less than the amount for 5 children
This application will result in a monthly child support figure that is presumed reasonable and in the best interest of the child.
Tex. Fam. Code Ann. § 154.122.
Lastly, there is certainly allowances made if the child needs additional support. The Family Code does not define “needs of the child.” A particular standard of living or lifestyle are not appropriate factors to consider when setting above-guideline support. Mai v. Mai, 853 S.W.2d 615 (Tex. App.—Houston [1st Dist.] 1993, no writ);Matter of Marriage of Thurmond, 888 S.W.2d 269, 278 (Tex. App.—Amarillo 1994, writ denied) (court held it was error for the trial court to consider the lifestyle of the child in setting the amount of child support). Although a child's needs are not limited to the bare necessities of life, needs do not include “the most extravagant demands” without evidence of a compelling justification. Scott v. Younts, 926 S.W.2d 415 (Tex. App.—Corpus Christi 1996, writ denied). See also In re Gonzalez, 993 S.W.2d 147 (Tex. App.—San Antonio 1999, no pet.) (child support award of $6,300 per month was upheld; court of appeals agreed that a bodyguard and nanny were needs of the child). Needs of the child may include private school, extracurricular activities, summer camps, tutoring, medical costs, counseling and educational books. Scott v. Younts, 926 S.W.2d 415 (Tex. App.—Corpus Christi 1996, writ denied); Nordstrom v. Nordstrom, 965 S.W.2d 575 (Tex. App.—Houston [1st Dist.] 1997, writ denied, cert. denied, 119 S.Ct. 1034 (1999).
If you have any questions or issues regarding child support or any other family law issues, please contact The Moon Law Firm at 713-999-9398 or at email@example.com.