IN THE INTEREST OF A.G. & D.G., MINORS--Appeal from 94th District Court of Nueces County

NUMBER 13-02-361-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF A.G. & D.G., MINORS

On appeal from the 94th District Court of Nueces County, Texas.

 
MEMORANDUM OPINION
Before Justices Hinojosa, Ya ez, and Garza
Opinion by Justice Garza

This appeal arises from a suit in which appellant, Cindy Mahoney Arnold ("Arnold"), sought to establish the paternity of her two children, A.G. and D.G., and to have child support awarded. The suit named appellee, Abraham Garcia, III ("Garcia"), as the father of both children. Garcia admitted his paternity of Arnold's children, and after reviewing evidence regarding Garcia's personal income and finances, the court ordered him to pay Arnold both current and retroactive child support for A.G. and D.G. On appeal, Arnold argues that the trial court erred in calculating Garcia's resources for purposes of determining support. We reverse and remand.

Arnold's challenge regards workers' compensation payments. In its order, the trial court found that Garcia had received "$480.28 per month for 66 weeks" during the relevant time period. The order also acknowledged and denied Arnold's request that such payments be included in Garcia's net resources for purposes of calculating retroactive child support payments. On appeal, Arnold does not dispute the court's finding that Garcia received benefits but argues that the trial court should have included the amount in Garcia's resources. We agree.

The Texas Family Code gives express instructions for determining child support liability. In relevant part, those provisions state:

(a) The court shall calculate net resources for the purpose of determining child support liability as provided by this section.

(b) Resources include:

* * *
(5) all other income actually being received, including severance pay,
retirement benefits, pensions, trust income, annuities, capital gains,
social security benefits, unemployment benefits, disability and
workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.

Tex. Fam. Code Ann. 154.062(a), (b)(5) (Vernon 2002).

The determination of the amount of child support to be paid is left to the discretion of the trial court and will not be disturbed on appeal absent a clear showing of abuse of discretion. Abrams v. Abrams, 713 S.W.2d 195, 196 (Tex. App.--Corpus Christi 1986, no writ); see also In re L.R.P., 98 S.W.3d 312, 313 (Tex. App.--Houston [1st Dist.] 2003, pet. denied); In re A.M., 101 S.W.3d 480, 484 (Tex. App.--Corpus Christi 2002, no pet.); Schuster v. Schuster, 690 S.W.2d 644, 645-46 (Tex. App.--Austin 1985, no writ); Bible v. Bible, 631 S.W.2d 177, 178 (Tex. App.--Houston [1st Dist.] 1981, no writ). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). 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). Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id. In this case, the trial court's order finds that Garcia received workers' compensation benefits. Without explaining the basis for its decision, the trial court refused to include those benefits as Garcia's resources. That decision directly contravenes the family code's unequivocal instructions and amounted to an abuse of discretion.

We REVERSE the trial court's order and REMAND for further proceedings consistent with this opinion.

________________________

DORI CONTRERAS GARZA,

Justice

 

Opinion delivered and filed this

the 29th day of August, 2003.