Deborah Fay Wall v. William Clifton Hall

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-97-00679-CV



Deborah Fay Wall, Appellant

v.

William Clifton Hall, Appellee



FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT NO. 17,569, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING

Appellant, Deborah Fay Wall, appeals from an order denying her motion to modify child support but granting appellee William Clifton Hall's motion. In one point of error, appellant argues that the trial court erred by not including certain distributions appellee received from two trusts in calculating his net resources when determining appellee's child support liability. We will affirm the decision of the trial court.

BACKGROUND Appellant and appellee were divorced on August 21, 1991. As part of the divorce decree, the court ordered that appellee pay support for the couple's child in the amount of $650 per month. In December 1995, appellant, seeking an increase in support, filed a motion to modify that order. Appellee countered by moving to decrease his support obligations. In October 1997, the trial court ordered a decrease in appellee's child support obligation.

At the hearing on the motions, one of the primary issues was the amount and nature of distributions that appellee received as a beneficiary of two spendthrift trusts under the control of independent corporate trustees. The evidence made clear that the trust established by appellee's mother (the "KVH Trust") produces no monthly income, and the trust established by appellee's father (the "AJH Trust") periodically produces income to which appellee is entitled. The evidence established that appellee had received infrequent distributions from the corpora of the trusts during the marriage and during the period of time relevant to the child support issue. The distributions received during the period of time relevant to the child support issue were used for personal expenses, including $20,000 to $30,000 for legal fees in 1995. Distributions must be requested from the trustee and reviewed by a trust committee, and the decision to make these distributions lies solely within the discretion of the corporate trustees. Both appellee and the couple's child are beneficiaries of both trusts with the same right to request distributions.

The trial court stated in its findings of fact that appellee's average net resources for the previous three years were approximately $29,000 per year, and that his net monthly resources totaled $1,800 per month. In making these calculations the trial court did not include any amount of money that appellee had received from the extraordinary distributions of corpus from either trust, though it did include the regular distributions of income received from the AJH Trust and appellee's employment income. Based on these calculations, the trial court denied appellant's requested modification and granted the modification requested by appellee. Subsequently, appellee's child support obligation was reduced to $356.00 per month.

DISCUSSION

The Texas Family Code itemizes those things that a trial court should consider when it calculates net resources for the purpose of determining child support obligations. See Tex. Fam. Code Ann. § 154.062 (West 1996). The trial court is given broad discretion in setting and modifying child support payments, and absent a clear abuse of discretion, the trial court's order will not be disturbed on appeal. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex. App.--Austin 1996, no writ).

Section 154.062 of the Family Code provides in part:

(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(b)(5) (West 1996). Appellant argues that "all other income actually being received" includes distributions from the corpus of a trust if those distributions are used personally by an obligor. Appellant concludes, then, that the trial court erred by not including these amounts in its calculation of appellee's net resources because it was required to do so. Although appellant does not appeal the amount of support ordered or expressly raise the issue, her underlying contention apparently supposes the support ordered would have been greater had the trial court taken appellee's additional resources into consideration.

Though appellant claims that extraordinary distributions from the corpus of a trust are "income" as a matter of law for the purpose of determining an obligor's child support liability, she cites no case law, statute, or other authority to support her contention in her half page argument on this sole issue. Failure to cite any authority to support a contention on appeal waives the contention and presents nothing for the appellate court to review. See Tex. R. App. P. 38.1(h); Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex. App.--Houston [1st Dist.] 1995, no writ).

Nevertheless, appellant argues that because a distribution from the trust corpus is not a "return of principal or capital" (an item not properly included in the calculation of net resources, see Tex. Fam. Code Ann. § 154.062(c)(1) (West 1996)), the distribution must be income as to appellee. Appellant's argument begs the question. It may be true that the statute's provision as to a "return of principal or capital" does not refer to a distribution from the corpus of a trust, but instead refers to the return of principal or capital on a note, which is not a net resource for child support purposes. See Farish v. Farish, 921 S.W.2d 538, 543 (Tex. App.--Beaumont 1996, no writ). But it does not follow that such a distribution must therefore be "income" under the statute.

We think it clear that irregular and infrequent distributions from the corpus of a trust which the obligor has no power to compel are not required to be included as income for the purpose of determining an obligor's net resources under the child support guidelines. "Income" from a trust traditionally consists of the return realized on the invested trust assets, such as interest and dividends. Such "trust income" to an obligor is addressed by statute and should be included in the calculation of an obligor's net resources. See Tex. Fam. Code Ann. § 154.062(b)(5) (West 1996). Extraordinary distributions of corpus, however, are not required to be included in the net resources calculation.

This conclusion is further supported by other portions of the Family Code. For example, where disbursement of the assets of a trust is discretionary, the court may order child support payments from the income of the trust only, but not from the principal. See id. § 154.005(b). In other words, a court cannot compel trustees to satisfy the child support obligations of their beneficiaries by using the trust corpus.

Our holding today does not preclude a trial court from considering extraordinary distributions of the corpus of a trust when setting child support, especially when the distributions are made on a regular basis and in a consistent amount. The Family Code permits the trial court in its discretion to consider factors other than those enumerated by statute when determining an individual's appropriate child support liability. See id. § 154.123. We simply hold under the facts presented here that when calculating net resources, it is not mandatory for the trial court to consider these extraordinary distributions from the trust corpus.

CONCLUSION

Appellant's failure to cite authority presents nothing for the court to review. To the extent she may have preserved the issue on the merits, we hold that the trial court did not err in calculating appellee's net resources and did not abuse its discretion in setting child support. The order of the trial court is affirmed.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Jones and Yeakel

Affirmed

Filed: February 11, 1999

Do Not Publish

the trial court taken appellee's additional resources into consideration.

Though appellant claims that extraordinary distributions from the corpus of a trust are "income" as a matter of law for the purpose of determining an obligor's child support liability, she cites no case law, statute, or other authority to support her contention in her half page argument on this sole issue. Failure to cite any authority to support a contention on appeal waives the contention and presents nothing for the appellate court to review. See Tex. R. App. P. 38.1(h); Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex. App.--Houston [1st Dist.] 1995, no writ).

Nevertheless, appellant argues that because a distribution from the trust corpus is not a "return of principal or capital" (an item not properly included in the calculation of net resources, see Tex. Fam. Code Ann. § 154.062(c)(1) (West 1996)), the distribution must be income as to appellee. Appellant's argument begs the question. It may be true that the statute's provision as to a "return of principal or capital" does not refer to a distribution from the corpus of a trust, but instead refers to the return of principal or capital on a note, which is not a net resource for child support purposes. See Farish v. Farish, 921 S.W.2d 538, 543 (Tex. App.--Beaumont 1996, no writ). But it does not follow that such a distribution must therefore be "income" under the statute.

We think it clear that irregular and infrequent distributions from the corpus of a trust which the obligor has no power to compel are not required to be included as income for the purpose of determining an obligor's net resources under the child support guidelines. "Income" from a trust traditionally consists of the return realized on the invested trust assets, such as interest and dividends. Such "trust income" to an obligor is addressed by statute and should be included in the calculation of an obligor's net resources. See Tex. Fam. Code Ann. § 154.062(b)(5) (West 1996). Extraordinary distributions of corpus, however, are not required to be included in the net resources calculation.

This conclusion is further supported by other portions of the Family Code. For example, where disbursement of the assets of a trust is discretionary, the court may order child support payments from the income of the trust only, but not from the principal. See id. § 154.005(b). In o