Opinion
No. 04-05-00757-CV
Delivered and Filed: October 25, 2006.
Appeal from the 131st Judicial District Court, Bexar County, Texas, Trial Court No. 1995-CI-05150, Honorable Barbara Hanson Nellermoe, Judge Presiding.
Affirmed.
Sitting: Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Judy Jabalie appeals the trial court's order modifying child support, alleging that the trial court abused its discretion in setting child support in excess of the statutory guidelines provided by the Texas Family Code. We affirm the judgment of the trial court.
Background
Judy Jabalie and Anthony Ridout are the divorced parents of two minor children, E.A.R. and S.L.R. The parties are joint-managing conservators of the children; the children reside with Ridout. S.L.R., a developmentally delayed teenager, is not self-sufficient and requires extensive care. While Jabalie visited her children every other weekend, she chose not to exercise the expanded possession ( i.e., holidays, summer, Thursday nights, Spring Break, etc.) awarded to her in a prior order. Jabalie contended that she was unable to carry out these visits due to her work schedule and her inability to afford child care for S.L.R. In addition, Jabalie was contemplating moving to El Paso to be near her parents, which would further restrict her ability to visit the children.
E.A.R. has since turned 18 and graduated from high school.
Ridout petitioned the court to increase child support and modify possession to coincide with Jabalie's days off from work. In August 2004, the trial court proposed a $100 reduction in Jabalie's current child support obligation of $501 if she would take S.L.R. for one long weekend per month. Jablie declined, and was subsequently ordered to pay guideline support in the amount of $657 per month. At a final hearing in May 2005, Ridout claimed that because Jabalie did not exercise her expanded visitation, he was forced to petition the court for additional support in order to cover the cost of child care incurred during the time S.L.R. should be with her mother. The trial court ordered Jabalie to pay monthly support at a rate of $250 above guideline support. This appeal followed.
The Honorable Martha B. Tanner, presiding judge of the 166th Judicial District Court, Bexar County, Texas, heard the motion for temporary orders in Ridout's amended petition to increase child support and modify possession.
Discussion
Jabalie argues that the trial court abused its discretion in setting child support in excess of the guidelines provided by the Texas Family Code. The trial court has wide discretion in determining whether modification of a child support order is appropriate. In the Interest of S.B.C., 952 S.W.2d 15, 17 (Tex.App.-San Antonio 1997, no pet.). A trial court's decision to modify child support will not be overturned on appeal absent a clear abuse of discretion. Id. (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)). The test for abuse of discretion is whether the court acted arbitrarily or unreasonably, without reference to any guiding rules or principles. Worford, 801 S.W.2d at 109; Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex.App.-San Antonio 1995, writ denied).
Because Jabalie has two minor children, the guidelines suggest she pay $658.57 per month. See Tex. Fam. Code Ann. § 154.129 (Vernon 2002). However, the trial court ordered Jabalie to pay the guideline amount plus an additional $250 per month, totaling $907.58. Jabalie does not challenge the support order to the extent that it is in accordance with the guidelines; rather, she complains solely of the additional support ordered by the court.
Section 154.123 of the Texas Family Code lists additional factors for the court's consideration in determining whether application of the guidelines is appropriate when ordering support. It states, in part:
(b) In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including:
(1) the age and needs of the child;
(2) the ability of the parents to contribute to the support of the child;
(3) any financial resources available for the support of the child;
(4) the amount of time of possession of and access to a child;
. . . .
(13) special or extraordinary educational, health care, or other expenses of the parties or of the child;
. . . .
(17) 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 (Vernon 2002).
Jabalie focuses on the second factor in her argument, contending that because of Ridout's relatively high income, he is financially better situated to meet all of S.L.R.'s special needs. Jabalie argues that while Ridout does incur additional child care expenses when Jabalie does not exercise her expanded visitation rights, he can afford these expenses while she cannot. Jabalie further asserts that the additional amount of support is arbitrary because it is not tied to any particular need of the child.
While an important factor, the parties' ability to provide financial resources for the child is but one issue to be considered by the trial court. See Tex. Fam. Code Ann. § 154.123(b)(2), (3). Another relevant factor is the needs of the child, including special or extraordinary health care or other expenses. See id. § (b)(13). Most importantly, the child's best interest should always be the primary consideration of the trial court in deciding issues of child support. See id. § (b)(17); Tex. Fam. Code Ann. § 156.402(b) (Vernon 2002); Carson v. Hathaway, 997 S.W.2d 760, 761 (Tex.App.-El Paso 1999, no pet.); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex.App.-Austin 1996, no writ). Here, in its order, the trial court made the following findings: "S.L.R. is a child with special needs, having both physical and mental disabilities;" "Jabalie has elected not to exercise expanded possession with the child, [resulting] in significant, non-standard, child-care expenses for the child at the rate of $10.00 per hour;" and "[Jabalie] testified that she will be moving to El Paso, further reducing her periods of possession with the child." Jabalie argues that there was no evidence offered at the May 2005 hearing to support Ridout's claim for child care costs; however, Ridout's attorney told the court that Ridout had incurred $1200 in the last six months in extra child care costs for S.L.R. and that S.L.R.'s nanny is paid $10.50 an hour. This was not refuted or objected to by Jabalie. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (holding attorney's statements may be considered as evidence if no objection is made to absence of oath). In fact, Jabalie's attorney appeared to agree with these statements when she told the court that "[Jabalie] doesn't have the financial ability to hire a nanny for $10.50 an hour . . ."
Based on the record, the trial court could have reasonably believed the additional support for S.L.R.'s special care was both necessary and in her best interest. Accordingly, we cannot say the trial court's decision was arbitrary or unreasonable. See In re Marriage of Lamirault, No. 07-01-0133-CV, 2001 WL 1166373, at *2 (Tex.App.-Amarillo Oct. 3, 2001, no pet.) (not designated for publication) (holding no abuse of discretion where trial court ordered father to pay additional support for disabled minor child who required special care). We hold the trial court did not abuse its discretion in ordering the additional support. Accordingly, the judgment of the trial court is affirmed.