In the Matter of the Marriage of Charmane Diane Stephens and Douglas Val Stephens--Appeal from 21st District Court of Burleson County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00398-CV

In the Matter of

the Marriage of

Charmane Diane Stephens

and

Douglas Val Stephens

From the 21st District Court

Burleson County, Texas

Trial Court No. 24,146

MEMORANDUM Opinion

Douglas Val Stephens appeals the trial court s divorce decree.[1] We reverse.

In Douglas s third issue, he contends, The trial court erred in setting child support above the presumptive guidelines without pleadings or evidence. (Br. at 6, 12.)

We have abated for findings of fact and conclusions of law in accordance with statute. See In Re Marriage of Stephens, No. 10-06-00398-CV (Tex. App. Waco Nov. 7, 2007, abatement order) (per curiam), disp. on merits, 2008 Tex. App. LEXIS _____ (Tex. App. Waco May 21, 2008, no pet. h.) (mem. op.). Among the findings required were that:

. . . if applicable, the obligor is obligated to support . . . children in more than one household, and:

(A) the number of children before the court is ___;

(B) the number of children not before the court residing in the same household with the obligor is ___; and

(C) the number of children not before the court for whom the obligor is obligated by a court order to pay support, without regard to whether the obligor is delinquent in child support payments, and who are not counted under Paragraph (A) or (B) is ___.

Id., slip op. at 2-3 (quoting Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, 1, sec. 154.130(b)(6), 1995 Tex. Gen. Laws 113, 164 (amended 2007) (current version at Tex. Fam. Code Ann. 154.130(b)(6) (Vernon Supp. 2007)) (ellipses added). The trial court made findings and conclusions. Among other findings, the trial court found:

Obligor [Douglas] is not obligated to support children in more than one household, and:

(A) the number of children before the court is 0.

(B) the number of children not before the court residing in the same household with the obligor [Douglas] is 0, and

(C) the number of children not before the court for whom the obligor [Douglas] is obligated by a court order to pay support, without regard to whether the obligor [Douglas] is delinquent in child support payments, and who are not counted under Paragraph (A) or (B) is 0.

([1 Supp.] C.R. at 18-19, Finding No. 6 (bracketed alterations added).) The trial court concluded that Appellee Charmane Diane Stephens should be awarded $1000 per month in child support.

We review the trial court s conclusions of law de novo. Theiss v. Glover, No. 10-06-00223-CV, 2007 Tex. App. LEXIS 6987, at *2 (Tex. App. Waco Aug. 29, 2007, no pet.) (mem. op.); see Duncan v. Bd. of Disciplinary Appeals, 898 S.W.2d 759, 761 (Tex. 1995) (orig. proceeding); In re Barr, 13 S.W.3d 525, 566 (Tex. Rev. Trib. 1999) (op. on reh g).

Since the trial court made its findings of fact, Douglas has filed a supplemental brief in which he argues that if the above findings are true, then the award of any child support is in error. (Supp. Br. at 12); cf. Tex. Fam. Code Ann. 154.001(a) (Vernon Supp. 2007). Charmane has not filed a reply.

Based on the trial court s findings of fact, the court erred in awarding child support. We sustain Douglas s third issue.

Having sustained Douglas s third issue, we need not decide his other issues. We reverse and remand.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Reversed and remanded

Opinion delivered and filed May 21, 2008

[CV06]

[1] Since the filing of Douglas s divorce appeal, the trial court has held Douglas in contempt for failure to pay child support and medical support in the trial court cause from which Douglas appeals here, and this Court has dismissed Douglas s petition for writ of habeas corpus and restricted appeal concerning the contempt order. See In re D.S.S., No. 10-07-00321-CV, 2008 Tex. App. LEXIS 1257 (Tex. App. Waco Feb. 20, 2008, no pet.) (mem. op.) (appeal); In re Stephens, No. 10-07-00278-CV, 2007 Tex. App. LEXIS 7949 (Tex. App. Waco Oct. 4, 2007, orig. proceeding) (mem. op.) (habeas).