Rodriguez v. Rodriguez , 36 Tex. Sup. Ct. J. 139 ( 1992 )

OPINION

PEEPLES, Justice.

In this divorce case we must decide what limits the family code places on a trial court’s discretion to set additional child support when the obligor’s net monthly resources exceed $4000. The family code contemplates support based on a percentage of the obligor’s net resources, but allows additional support when the net resources exceed $4000. We hold that the order before us, which sets child support at $2500 per month, does not rest on the child’s needs or any other proper basis. We therefore reverse and remand.

George and Rita Rodriguez agreed to be joint managing conservators of their six-year-old son, with Rita having primary custody. The trial court approved the agreement and then heard evidence about the marital property and child support. The court found that George’s net monthly resources were $8900, that Rita was unemployed, and that child support of $2500 per month would be “an equitable amount of support, based on the needs of the child at the time of the order, and the net resources of the parents.” The court made no other findings of fact. The evidence, considered favorably to the trial court’s order and without regard to contrary evidence and inferences, shows the child’s maximum monthly financial needs to be $1742.17 (the total on Rita’s exhibit summarizing the child’s expenses). The sole issue in this appeal is whether the family code permits the $2500 child support award on this record.

The family code’s child support guidelines clearly authorized the court to set support at 20 percent of the first $4000 of George’s net resources, or $800 per month. See Tex.Fam.Code § 14.055(b). But the guidelines are not mandatory. Three sections of the code allow the court to deviate from them, but each section specifies different factors to consider when varying from the recommended percentage.

Two sections of the family code permit courts to vary from the guidelines without dealing specifically with additional support in cases of net resources greater than $4000. Section 14.052 tells trial courts to consider four factors when varying from the guidelines:

§ 14.052. Guidelines for the Support of a Child

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(b) Factors. In determining the amount of child support, the court shall be guided by the guidelines and may consider, in varying from or following the guidelines:

(1) the 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; and

(4) the amount of possession of and access to a child.

Tex.Fam.Code § 14.052 (Vernon Supp.1992).

In addition, § 14.054 authorizes support “within or outside” the guidelines based on fifteen factors, many of them overlapping:

§ 14.054. Evidentiary Factors

In applying the guidelines for the support of a child in this chapter, the court shall be guided by the guidelines for the support of a child in this chapter. However, the court may, in rendering its final determination of the amount of support, set the amount of child support either within or outside the range recommended in Section 14.055 of this code if relevant factors other than the guidelines justify a variance from the guidelines. In making its final determination, the court shall consider all relevant factors, including but not limited to:

(1) the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including, as provided by Section 14.053(e) of this code, any increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;

(2) the age and needs of the child;

(3) child care expenses incurred by either party in order to maintain gainful employment;

(4) whether either party has the managing conservatorship or actual physical custody of another child;

(5) the amount of child support actually and currently being paid or received by either party under another child support order;

(6) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

(7) the expenses for a son or daughter for education beyond secondary school;

(8) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;

(9) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;

(10) provision for health care insurance and payment of uninsured medical expenses;

(11) special or extraordinary educational, health care, or other expenses of the parties or of the child;

(12) the cost of travel in order to exercise access to or possession of a child;

(13) positive or negative cash flow from any real and personal property and assets, including a business and investments;

(14) debts or debt service assumed by either party; and

(15) any other reason or reasons consistent with the best interest of the child, taking into consideration the circumstances of the parents.

Tbx.Pam.Code § 14.055 (Vernon Supp.1992).

A third provision, § 14.055, applies specifically when the obligor’s net monthly resources exceed $4000, as they do in this case. It authorizes additional support based on one factor, the child’s needs:

§ 14.055. Guidelines: Amount Ordered

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(c) More Than $4000 Monthly Net Resources. In situations in which the obli-gor’s net resources exceed $4,000 per month, the court shall presumptively apply the percentage guidelines in Subsection (b) of this section [20 percent for one child] to the first $4,000 of the obligor’s net resources. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as proven, depending on the needs of the child at the time of the order.

Tex.Fam.Code § 14.055 (Vernon Supp.1992) (emphasis added).

Clearly the three provisions set different standards for variance from the guidelines. Sections 14.052 and 14.054 mention factors other than needs, including income. Section 14.055 requires proof of the child’s needs. Rita relies on the first two sections.

In our view, § 14.055 governs this case because it deals specifically with additional support in above-$4000 cases; the other sections deal with deviation from the guidelines generally in all cases, not only in high-resource cases. Our duty is to reconcile the three sections and give effect to each, but if they cannot be reconciled, the specific statute prevails over the general ones. See Tex.Gov’t Code § 311.026 (Vernon 1988); Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879, 881 (1947); Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063, 1064 (1929); Ayre v. Brown & Root, Inc., 678 S.W.2d 564, 566 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.). We harmonize the three provisions and also give effect to the more specific statute by holding that under § 14.055, when net resources exceed $4000, awards of additional support must rest on evidence of the child’s needs. In cases of resources below $4000, the court may vary from the guidelines when there is proof of other evidentiary factors mentioned in §§ 14.052 and 14.054, which include the child’s needs and other factors.

Certainly the trial court could not properly have reached the $2500 figure by beginning with the percentage amount ($800) and then adding the full value of the child’s needs ($1742). That would amount to a double award of $800 because the base statutory percentage includes the child’s needs already. In cases of net resources above $4000, the legislature did not authorize courts to award the statutory percentage and then tack on garden-variety expenses, which are already covered by the percentage. It authorized courts to award additional child support above the statutory percentage amount to the extent required by the child’s needs. The evidence before us supports additional support of no more than $942.

An award of child support above the guidelines without regard to needs and solely because the obligor has great income would amount to de facto alimony. Texas has forbidden court-ordered alimony since 1841. See Eichelberger v. Eichelberger, 582 S.W.2d 395, 402 (Tex.1979); Francis v. Francis, 412 S.W.2d 29, 32 (Tex.1967). Whether that is wise public policy is not the issue here. The legislature did not change longstanding Texas law and allow alimony simply by mentioning the obligor’s income as a factor in §§ 14.052 and 14.054. Child support and spousal support are two different things. It is implicit in the child support guidelines that support is paid for the child and not for the custodial parent without regard to the child’s needs. And under § 14.055(c) additional child support must be justified by the child’s needs.

Pre-guideline cases had allowed trial courts to consider a family’s previous lifestyle or standard of living along with many other factors when setting child support. See, e.g., Sohocki v. Sohocki, 730 S.W.2d 30, 32 (Tex.App.—Corpus Christi 1987, no writ); Smallwood v. Smallwood, 625 S.W.2d 75, 77 (Tex.App.—Fort Worth 1981, no writ); Cooper v. Cooper, 513 S.W.2d 229, 234 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ). The 1987 guidelines continued that rule; in cases of net resources greater than $4000, they expressly authorized trial courts to consider lifestyle, together with income and needs, when deciding whether to order additional support.¹

But the legislature deleted the lifestyle language from the guidelines in 1989. The present § 14.055 does not mention lifestyle or income of the parties; it mentions only the needs of the child. When the legislature amends a statute and omits a word— especially such an important word — we must presume that it did so for a reason. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981) (reviewing court must presume that every word excluded when statute is revised was excluded for a purpose).

We have found one post-guideline case involving net resources above $4000. See Ikard v. Ikard, 819 S.W.2d 644 (Tex.App.— El Paso 1991, no writ). There the court affirmed a child support order of $2840 per month for two children, to decrease to $2272 when the first child reached majority or was emancipated. The master’s written findings stated that she applied the guidelines to the first $4000 and ordered additional support “based upon the demonstrated needs of the children.” Id. at 646. In contrast to the written findings, the master’s previous statements from the bench indicated that she applied the guideline percentages to the obligor’s net resources above $4000. The appellate court apparently thought, as we do, that it would be improper to apply the percentage to net resources beyond the first $4000, but it affirmed the order because a trial court’s oral statements from the bench cannot undermine or negate its written findings. See id. at 647; In the Interest of W.E.R., 669 S.W.2d 716 (Tex.1984). The Ikard court then concluded that a monthly expense statement and other evidence of the children’s needs supported the written findings and the additional support ordered. 819 S.W.2d at 648-50. That evidence of the child’s needs distinguishes our case from Ikard.

We disagree with the Ikard court’s reliance on lifestyle cases that arose before the effective date of the 1989 guidelines, which eliminated lifestyle as a factor for the court to consider. In post-1989 cases it is no longer enough to state simply that the duty to support is not limited to the bare necessities, or that children are entitled to live in the lifestyle to which they have become accustomed. The guidelines require that support above the statutory percentage applied to the first $4000 must rest on evidence of needs. We recognize that the evidence in different cases will often reflect different lifestyles and standards of living. But litigants must present evidence of the child’s needs.

We stress that the extent to which a court may order additional support when net resources exceed $4000 is a fact-specific decision in which the trial court has considerable discretion. Nevertheless, awards of additional support must be supported by legally sufficient evidence — evidence that is relevant under the substantive law. See Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 592-93 n. 1 (Tex.1992). Evidence is legally insufficient if “the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact.” Cecil v. Smith, 804 S.W.2d 509, 510 n. 2 (Tex.1991). In cases of net resources above $4000, the family code bars courts from awarding additional support on any basis other than the child’s needs. The evidence before us does not support the $2500 order.

The order of support is reversed and that portion of the cause is remanded for further proceedings consistent with this opinion.

1 . The 1987 guidelines provided:

In situations in which the obligor’s net resources exceed $4,000 per month, the court should apply the percentage guidelines contained in Rule 5 to the first $4,000 of the obligor’s net resources, and, without further reference to the percentage recommended by these guidelines, may order additional amounts of child support as are appropriate, depending on the lifestyle of the family, the income of the parties, and the needs of the child.

Tex.Fam.Code § 14.05 (1988) (emphasis added). One early case applying the 1987 guidelines cited lifestyle in upholding support of $2000 per month when net monthly resources were $10,-000. See Anderson v. Anderson, 770 S.W.2d 92, 96 (Tex.App.—Dallas 1989, no writ).