Michelle Roxanne Foster v. Ernest Alejandre ( 2009 )


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  •                                     NUMBER 13-08-00535-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    MICHELLE ROXANNE FOSTER,                                                                      Appellant,
    v.
    ERNEST ALEJANDRE,                                                                             Appellee.
    On appeal from the 105th District Court
    of Nueces County, Texas.
    MEMORANDUM OPINION
    Before Justices Yañez, Rodriguez, and Benavides
    Memorandum Opinion by Justice Rodriguez
    Appellant Michelle Roxanne Foster appeals the order of the trial court directing
    appellee Ernest Alejandre to pay monthly child support.1 By two issues, Foster complains
    that the trial court erred in (1) its calculation of Alejandre's net income because the court
    1 This case was transferred from th e 1 05th District Court to the 94th District Court of Nueces County,
    Texas. T h e style of all of the pleadings and other court documents state that the case was situated in the
    105th Court. However, the hearings were held before District Judge Bobby Ga l va n i n the 94th Court, and
    Judge Galvan entered both the fin d i n gs of fact and conclusions of law and the order modifying child support.
    deducted from Alejandre's gross income self-employment social security and federal
    income taxes, despite Alejandre's admission that he paid neither, and (2) in using the
    Office of Attorney General Tax Charts to determine Alejandre's net available resources.
    We affirm.
    BACKGROUND
    On September 5, 2007, the Office of the Attorney General filed a motion to modify
    child support and confirm support arrearage on behalf of the children of Foster and
    Alejandre. An associate judge held a hearing on the motion on January 24, 2008. On
    January 29, 2008, in a notice of de novo hearing request to the district court, Foster
    challenged the findings and conclusions of the associate judge regarding Alejandre's gross
    and net income and calculation of child support. The district court held two hearings on
    Foster's de novo appeal.
    On July 2, 2008, the court entered the following findings of fact and conclusions of
    law: (1) Alejandre's gross monthly income is $3,000.00; (2) based on chapter 154 of the
    family code and the Texas Attorney General's tax chart for self-employed persons,
    Alejandre's net monthly income is $2,462.48; and (3) even though Alejandre had testified
    that he had not paid income taxes, social security taxes, or Medicaid taxes, he was entitled
    to a credit for those items in computing his net monthly income. On August 19, 2008, the
    court entered an order modifying child support; it set Alejandre's net monthly income at
    $2,462.48 and ordered Alejandre to pay Foster $396.06 per month in child support. This
    appeal ensued.
    STANDARD OF REVIEW & APPLICABLE LAW
    2
    We review a trial court's order regarding child support for abuse of discretion. Office
    of the Att'y Gen. v. Buhrle, 
    210 S.W.3d 714
    , 717 (Tex. App.–Corpus Christi 2006, pet.
    denied) (citing Worford v. Stamper, 
    801 S.W.2d 108
    , 109 (Tex. 1990)). We will not
    overturn the order unless the trial court acted arbitrarily or unreasonably or "without
    reference to any guiding rules or principles." 
    Id. If a
    trial court fails to "analyze or apply
    the law correctly," it has abused its discretion. 
    Id. Monthly child
    support obligations are calculated based on the obligor's net available
    resources. See TEX. FAM. CODE ANN. § 154.061 (Vernon 2008); Wilemon v. Wilemon, 
    930 S.W.2d 290
    , 293 (Tex. App.–Waco 1996, no writ). The trial "court shall deduct the
    following items from resources to determine the net resources available for child support:
    (1) social security taxes; [and] (2) federal income tax based on the tax rate for a single
    person claiming one personal exemption and the standard deduction . . . ."          TEX. FAM.
    CODE ANN. § 154.062(d)(1)-(2) (Vernon 2008) (emphasis added). In determining the
    correct deductions to be made from a self-employed obligor's gross resources, the trial
    court may consult the Office of the Attorney General Tax Charts, promulgated pursuant
    to section 154.061 of the family code. See 
    id. at §
    154.061(b).
    DISCUSSION
    By two issues, Foster challenges the trial court's child support order because the
    court deducted Alejandre's self-employment social security and federal income taxes from
    his gross income and used the Office of the Attorney General Tax Charts to determine
    Alejandre's net available resources. Foster contends that, because Alejandre admitted that
    he did not pay those taxes, it was improper for the court to deduct them from the gross
    income amount in arriving at the net income used for the child support calculation.
    3
    Foster provides no authority, and we find none, for her argument that section
    154.062(d) does not apply when the obligor does not pay his taxes. Rather, the mandate
    of section 154.062(d) is quite clear. Section 154.062(d) directs the trial court to deduct
    both social security and federal income taxes from the obligor's resources in determining
    the net available resources for child support. See TEX. FAM. CODE ANN. § 154.062(d)(1)-(2)
    (stating that the court "shall" deduct social security and federal income taxes from the
    obligor's gross resources).   The statute makes no exception for obligors who do not pay
    their taxes. Thus, the trial court here properly applied the law when it deducted social
    security and federal income taxes from Alejandre's gross monthly income. See In re
    Grossnickle, 
    115 S.W.3d 238
    , 249 (Tex. App.–Texarkana 2003, no pet.) (strictly applying
    section 154.062(d) in concluding that the trial court had failed to deduct social security
    taxes from the obligor's gross income). Moreover, the court was acting according to
    guiding rules and principles when it used the Office of the Attorney General Tax Charts to
    calculate Alejandre's net monthly income. See T EX . FAM. CODE ANN. § 154.061. We,
    therefore, cannot conclude that the trial court abused its discretion, and we overrule
    Foster's first and second issues. See 
    Buhrle, 210 S.W.3d at 717
    .
    CONCLUSION
    The order of the trial court is affirmed.
    NELDA V. RODRIGUEZ
    Justice
    Memorandum Opinion delivered and
    filed this 30th day of July, 2009.
    4
    

Document Info

Docket Number: 13-08-00535-CV

Filed Date: 7/30/2009

Precedential Status: Precedential

Modified Date: 9/11/2015