in the Interest of J.M.W.

Affirmed in part, Reversed in part, Remanded, and Opinion filed July 23,
2014.

In the

Fourteenth Court of Appeals

NO. 14-14-00135-CV

IN THE INTEREST OF J.M.W.

On Appeal from the 328th District Court
Fort Bend County, Texas
Trial Court Cause No. 11-DCV-189139

OPINION

This is an appeal from the trial court’s SAPCR 1 order granting a child
support modification in favor of appellee J.S.F., the mother of J.M.W., an adult
child who is mentally disabled. Appellant M.L.W., the father of J.M.W., contends
the trial court abused its discretion by: (1) disregarding the general child support

1
Under the Texas Family Code, a suit affecting the parent-child relationship or SAPCR
is defined as a suit “in which the appointment of a managing conservator or a possessory
conservator, access to or support of a child, or establishment or termination of the parent-child
relationship is requested.” Tex. Fam. Code Ann. § 101.032(a) (West, Westlaw through 2015 R.
Sess.).
provisions and (2) improperly construing the statute governing the amount of
support for an adult disabled child, as well as by (3) improperly including the
income of Father’s new spouse and (4) ordering support that grossly exceeds the
properly calculated amount. Father also argues that: (5) the trial court abused its
discretion in refusing to reopen the evidence to admit his premarital agreement
with his new spouse; (6) the court reversibly erred in failing to make required
findings; and (7) the court’s award of attorney’s fees should be set aside or, in the
alternative, modified.

We conclude that the trial court abused its discretion by incorrectly
analyzing and applying the law with regard to its determination of the amount of
child support. We conclude that the trial court did not abuse its discretion in
excluding the premarital agreement or in awarding attorney’s fees. Therefore, we
affirm in part and reverse in part the trial court’s judgment, and remand for
recalculation of the amount of child support and reconsideration of the amount of
attorney’s fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

Father and Mother were divorced by final decree of divorce in January 1987
in Montgomery County, Texas. They have one child, J.M.W., born in October
1985. Mother was named managing conservator, and Father was named
possessory conservator. Father was awarded periods of possession and ordered to
pay $300 in monthly child support to Mother for the benefit of J.M.W.

Father remarried and had additional children with his second wife. Father’s
child support obligations for these children ended in 2011. He married his third,
current wife in 2002. Mother remarried and relocated to Katy in Fort Bend
County, Texas.

2
 J.M.W. resides with Mother. Father ceased providing any child or other
financial support for J.M.W. when the child graduated from high school at age 19.
Father also stopped regular periods of possession of J.M.W. and since then only
has had possession of J.M.W. twice a year for a few hours each time.

In April 2011, when J.M.W. was 25 years old, Mother filed an original
petition to modify parent-child relationship in Montgomery County, seeking
support from Father for the benefit of their adult disabled son. This suit was
transferred to Fort Bend County and assigned to the trial court. The case was tried
before the trial court in July 2013.

J.M.W. has been diagnosed with attention deficit hyperactivity disorder and
bipolar disorder. Since age seven, J.M.W. has undergone courses of treatment by a
psychiatrist and a psychologist. J.M.W. has become violent with and hit Mother
more than once and has destroyed property in her home. J.M.W. has held only one
job for six months at McDonald’s, which he lost due to angry outbursts.

During the day, Monday through Friday, J.M.W. participates in a workshop
job program at Brookwood Community2 and earns a total of $758.00 annually for
such work. Mother applied for and J.M.W. began receiving supplemental social
security income and Medicaid benefits at approximately age 18. J.M.W. receives
$473.24 monthly from these benefits. J.M.W.’s necessary monthly living expenses
while residing with Mother amount to $2,196.

According to the psychiatrist appointed in this case,3 J.M.W. is incapable of

2
A scholarship fully covers this tuition.
3
After Father contested whether J.M.W. suffered from disabilities, Mother requested and
the trial court granted an independent mental evaluation. Father previously filed a petition for
writ of mandamus, arguing that the trial court abused its discretion by not appointing Father’s
chosen expert and by requiring Father to pay for such evaluation. We denied his petition. In re
Weisinger, No. 14-12-00558-CV, 2012 WL 3861960, at *4 (Tex. App.—Houston [14th Dist.]
Sept. 6, 2012, no pet.) (mem. op. on reh’g).
3
self-support and independent living, and if the child did not live with Mother,
J.M.W. would require full-time, structured residential placement. According to
Mother’s disability benefits consultant, it would be in J.M.W.’s best interest to
transition to residential placement while Mother is still alive, and Brookwood
would be a good placement. Both Father and his wife testified that J.M.W.’s living
at their home on a full-time basis would not be an option. The median monthly
tuition for a full-time resident at Brookwood is approximately $3,300.

Mother testified that her monthly income from her position as a special
education teacher is $1,620. The trial record reveals the following about Father’s
income as a car salesman:

• Father’s 2009 W-2 reflects wages of $36,563.51, and his 1099’s
show miscellaneous income of $3,800, for a total of
$40,363.51.
• Father’s 2010 W-2 reflects wages of 35,160.04, and his 1099
shows miscellaneous income of $1,275, for a total of
$36,435.04.
• Father’s 2011 W-2 reflects wages of $54,940.98, and his 1099’s
show miscellaneous income of $7,500, for a total of
$62,440.98.
• Father’s 2012 W-2’s reflect wages of $33,649.06, and his 1099
shows miscellaneous income of $2,850, for a total of
$36,499.06.
• Starting in 2013, Father began working as a fleet sales manager
with a monthly base salary of $4,000, plus a 25% commission.4

Father testified that he and his wife had a combined gross income of about
$150,000 for tax years 2009 and 2010. Father and his wife’s 2009 joint tax return

4
Father also indicated he had about $65,000 in retirement benefits from his former
dealership, a $25,000 life insurance policy through his work, and a $400,000 life insurance
policy, of which his wife is the beneficiary.

4
reflects income and adjusted gross income of $151,965. Their 2010 joint return
reflects income and adjusted gross income of $149,922. The wages portion of the
tax returns includes both Father’s and Father’s wife’s wages.5 The returns reflect
income from rental properties. Father’s wife owns rental properties acquired prior
to their marriage, and Father owns no separate properties.

After both sides rested, the trial court announced its finding that J.M.W. met
the required standards to receive the benefits of child support as a disabled child.
The court reconvened in September 2013 to determine the amount and manner of
payment. Over Father’s objection, Mother argued that under section 154.306 of
the Texas Family Code the trial court was able to consider Father’s wife’s
resources for purposes of setting J.M.W.’s support.

The trial court signed a final order on October 4, 2013, ordering Father to
pay $1,500.00 in monthly child support indefinitely, plus $1,500.00 in monthly
support retroactive to April 2011. The court ordered Father to pay Mother’s
counsel her attorney’s fees and expenses in the amount of $28,454.01.

Father requested findings of fact and conclusions of law pursuant to Texas
Rule of Civil Procedure 296. Pursuant to section 154.1306 of the Texas Family

5
Father’s wife was employed by Anadarko as a tax manager.
6
Section 154.130, Findings in Child Support Order, provides:
(a) Without regard to Rules 296 through 299, Texas Rules of Civil Procedure, in
rendering an order of child support, the court shall make the findings required by
Subsection (b) if:
(1) a party files a written request with the court not later than 10 days after
the date of the hearing;
(2) a party makes an oral request in open court during the hearing; or
(3) the amount of child support ordered by the court varies from the
amount computed by applying the percentage guidelines under Section
154.125 or 154.129, as applicable.
(b) If findings are required by this section, the court shall state whether the
5
Code, Father also requested findings regarding whether application of the child
support guidelines would be unjust or inappropriate, his monthly net resources,
Mother’s monthly net resources, the percentage applied to the first $8,550 of his
monthly net resources for child support, and the specific reasons that the amount of
support varied from the amount computed by applying the section 154.125 7

application of the guidelines would be unjust or inappropriate and shall state the
following in the child support order:
“(1) the net resources of the obligor per month are $__________;
“(2) the net resources of the obligee per month are $__________;
“(3) the percentage applied to the obligor's net resources for child support
is __________%; and
“(4) if applicable, the specific reasons that the amount of child support per
month ordered by the court varies from the amount computed by applying
the percentage guidelines under Section 154.125 or 154.129, as
applicable.”
Tex. Fam. Code Ann. § 154.130 (West, Westlaw through 2015 R. Sess.).
7
Section 154.125, Application of Guidelines to Net Resources, provides:
(a) The guidelines for the support of a child in this section are specifically
designed to apply to situations in which the obligor’s monthly net resources
are not greater than $7,500 or the adjusted amount determined under
Subsection (a-1), whichever is greater.
(a-1) The dollar amount prescribed by Subsection (a) is adjusted every six
years as necessary to reflect inflation. The Title IV-D agency shall
compute the adjusted amount, to take effect beginning September 1 of the
year of the adjustment, based on the percentage change in the consumer
price index during the 72-month period preceding March 1 of the year of
the adjustment, as rounded to the nearest $50 increment. The Title IV-D
agency shall publish the adjusted amount in the Texas Register before
September 1 of the year in which the adjustment takes effect. For purposes
of this subsection, “consumer price index” has the meaning assigned by
Section 341. 201, Finance Code.
(b) If the obligor’s monthly net resources are not greater than the amount
provided by Subsection (a), the court shall presumptively apply the following
schedule in rendering the child support order:
CHILD SUPPORT GUIDELINES
BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR
1 child 20% of Obligor’s Net Resources
6
(West, Westlaw through 2015 R. Sess.). A suit to obtain support for an adult
disabled child may be filed at any time, regardless of the child’s age, and may be
filed as a suit for modification as provided by chapter 156. Tex. Fam. Code Ann.
§ 154.305(a)(1), (c) (West, Westlaw through 2015 R. Sess.).

Section 154.306, Amount of Support After Age 18, provides:

In determining the amount of support to be paid after a child’s 18th
birthday, the specific terms and conditions of that support, and the
rights and duties of both parents with respect to the support of the
child, the court shall determine and give special consideration to:
(1) any existing or future needs of the adult child directly
related to the adult child’s mental or physical disability and the
substantial care and personal supervision directly required by or
related to that disability;
(2) whether the parent pays for or will pay for the care or
supervision of the adult child or provides or will provide
substantial care or personal supervision of the adult child;
(3) the financial resources available to both parents for the
support, care, and supervision of the adult child; and
(4) any other financial resources or other resources or programs
available for the support, care, and supervision of the adult
child.

Tex. Fam. Code Ann. § 154.306 (West, Westlaw through 2015 R. Sess.).

1. Interpreting section 154.306; Father’s first, second, and sixth issues

Father’s first two issues concern the trial court’s alleged failures to analyze
or apply the law correctly. Father’s sixth issue regarding section 154.130 findings
is similarly related to the trial court’s alleged legal errors. We conclude that the

not be capable of self-support; and
(2) the disability exists, or the cause of the disability is known to exist, on
or before the 18th birthday of the child.
Tex. Fam. Code Ann. § 154.302(a) (West, Westlaw through 2015 R. Sess.).

11
which prohibits adding any portion of a spouse’s net resources to calculate child
support.

We agree with Father. First, the plain language of section 154.306 indicates
that in the context of determining the amount of support for adult disabled
children, “the court shall determine and give special consideration to” the four
enumerated factors. Id. § 154.306. The adjective “special” means “unusual;
extraordinary,” “held in particular esteem” or “being other than the usual:
additional, extra.” Black’s Law Dictionary (10th ed. 2014, Westlaw); Merriam-
Webster’s Collegiate Dictionary 1197 (11th ed. 2004). Certainly, the plain text
highlights the importance of these particular factors. However, we discern no
language in section 154.306 indicating that these are the sole or exclusive factors
for courts to consider when setting child support for an adult disabled child. Id.

Moreover, we may not read a provision such as section 154.306 in isolation,
but we must always interpret it in the context of the entire law in which it is found.
See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); City of
Amarillo v. R.R. Comm’n of Tex., 894 S.W.2d 491, 494 (Tex. App.—Austin 1995,
writ denied). “[C]ontext is essential to textual analysis, something [the Supreme
Court of Texas] has held repeatedly, emphatically, and unanimously.” In re Ford
Motor Co., 442 S.W.3d 265, 273 (Tex. 2014).

Section 154.304 provides that “[e]xcept as otherwise provided by this
subchapter,” the substantive and procedural rights and remedies in a SAPCR suit
relating to the establishment, modification, or enforcement of a child support order
apply to a suit filed and an order rendered under subchapter F. Tex. Fam. Code
Ann. § 154.304. The pertinent definition of the adverb “otherwise” is “to the

resources of an obligor or obligee in order to calculate the amount of child support to be ordered
in a suit for modification.”).

15
 Father brings seven issues on appeal. Father challenges the amount of the
child support award, arguing that the trial court: (1) disregarded the child support
guidelines, (2) improperly construed section 154.306 of the Texas Family Code,
(3) included or substantially considered the income from Father’s new spouse, and
(4) grossly exceeded the guidelines. Father also argues that the trial court abused
its discretion by: (5) refusing to reopen the evidence to include his premarital
agreement; (6) failing to make required statutory findings; and (7) awarding
attorney’s fees, considering all the other errors.

II. ANALYSIS

A. Standards of review

A trial court’s order setting or modifying child support will not be disturbed
on appeal unless the complaining party can demonstrate a clear abuse of discretion.
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re A.M.P.,
368 S.W.3d 842, 846 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The court
also enjoys broad discretion in determining the amount of retroactive child support,
if any, to be ordered, and in determining whether to award attorney’s fees. See
Tex. Fam. Code Ann. §§ 106.002, 154.131(a) (West, Westlaw through 2015 R.
Sess.); Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996) (attorney’s fees); Cohen
v. Sims, 830 S.W.2d 285, 288 (Tex. App.—Houston [14th Dist.] 1992, writ denied)
(retroactive child support).

Courts abuse their discretion when they act arbitrarily or unreasonably, or
without reference to guiding rules or principles. Worford, 801 S.W.2d at 109;
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Courts have no discretion, however, when determining what the law is, which law
governs, or how to apply the law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.

9
1992). Under an abuse-of-discretion standard, legal and factual insufficiency are
not independent grounds of error, but rather are relevant factors in assessing
whether the trial court abused its discretion. Flowers v. Flowers, 407 S.W.3d 452,
457 (Tex. App.—Houston [14th Dist.] 2013, no pet.). There is no abuse of
discretion where some evidence of a substantive and probative character supports
the court’s exercise of its discretion. Id.

We review questions of statutory construction de novo. City of Rockwall v.
Hughes, 246 S.W.3d 621, 625 (Tex. 2008). “A fundamental rule of statutory
construction is to ascertain and give effect to the Legislature’s intent.” City of San
Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003). We construe the words
of a statute according to their plain meaning, Tex. Dep’t of Transp. v. City of
Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004), and in the context of the statute’s
surrounding provisions, see Tex. Gov’t Code Ann. § 311.011(a) (West, Westlaw
through 2015 R. Sess.). We must not engage in forced or strained construction;
rather, we must yield to the plain sense of the words the Legislature chose. See St.
Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997).

B. Child support for adult disabled children

The trial court may order child support for a disabled child for an indefinite
period. Tex. Fam. Code Ann. §§ 154.001(a)(4) (“The court may order either or
both parents to support a child in the manner specified by the order . . . if the child
is disabled as defined in this chapter, for an indefinite period.”), 154.302(a) 10

10
Section 154.302, Court-Ordered Support for Disabled Child, provides:
(a) The court may order either or both parents to provide for the support of a child
for an indefinite period and may determine the rights and duties of the parents if
the court finds that:
(1) the child, whether institutionalized or not, requires substantial care and
personal supervision because of a mental or physical disability and will
10
(West, Westlaw through 2015 R. Sess.). A suit to obtain support for an adult
disabled child may be filed at any time, regardless of the child’s age, and may be
filed as a suit for modification as provided by chapter 156. Tex. Fam. Code Ann.
§ 154.305(a)(1), (c) (West, Westlaw through 2015 R. Sess.).

Section 154.306, Amount of Support After Age 18, provides:

In determining the amount of support to be paid after a child’s 18th
birthday, the specific terms and conditions of that support, and the
rights and duties of both parents with respect to the support of the
child, the court shall determine and give special consideration to:
(1) any existing or future needs of the adult child directly
related to the adult child’s mental or physical disability and the
substantial care and personal supervision directly required by or
related to that disability;
(2) whether the parent pays for or will pay for the care or
supervision of the adult child or provides or will provide
substantial care or personal supervision of the adult child;
(3) the financial resources available to both parents for the
support, care, and supervision of the adult child; and
(4) any other financial resources or other resources or programs
available for the support, care, and supervision of the adult
child.

Tex. Fam. Code Ann. § 154.306 (West, Westlaw through 2015 R. Sess.).

1. Interpreting section 154.306; Father’s first, second, and sixth issues

Father’s first two issues concern the trial court’s alleged failures to analyze
or apply the law correctly. Father’s sixth issue regarding section 154.130 findings
is similarly related to the trial court’s alleged legal errors. We conclude that the

not be capable of self-support; and
(2) the disability exists, or the cause of the disability is known to exist, on
or before the 18th birthday of the child.
Tex. Fam. Code Ann. § 154.302(a) (West, Westlaw through 2015 R. Sess.).

11
trial court committed a clear abuse of discretion, and sustain Father’s first, second,
and sixth issues.

Consistent with her position below, Mother argues that courts can solely
consider and apply section 154.306 when awarding support for an adult disabled
child. That is, courts need not look to any of the provisions from other chapters or
subchapters of the Family Code because the Legislature provided a specific,
unique scheme for calculating support for adult disabled children in section
154.306.

Father argues that the trial court abused its discretion by refusing to consider
and apply general provisions from other parts of the Family Code when it
determined the amount of support. 11 Father asserts section 154.306 provides that
the trial court shall give “special,” not exclusive, consideration to its enumerated
factors. That is, section 154.306 expands what courts consider in the case of adult
disabled children but does not restrict the consideration and application of other
general provisions from other parts of the Family Code.

Father further points to section 154.304, General Procedure, which provides:

Except as otherwise provided by this subchapter, the substantive and
procedural rights and remedies in a suit affecting the parent-child
relationship relating to the establishment, modification, or
enforcement of a child support order apply to a suit filed and an order
rendered under this subchapter.

Tex. Fam. Code Ann. § 154.304 (West, Westlaw through 2015 R. Sess.).
Therefore, according to Father, in the context of determining support for an adult
disabled child, courts must still consider the child support guidelines in subchapter
C. See Tex. Fam. Code Ann. §§ 154.121–.133 (West, Westlaw through 2015 R.
11
On appeal, Father does not challenge the trial court’s statutory findings that J.M.W. is
disabled and eligible for child support. See id. § 154.302(a).

12
Sess.). In other words, although courts ultimately may conclude in their discretion
that applying the guidelines is unjust and inappropriate per section 154.122 (which
the trial court did here), they must determine the presumptive amount of support
per section 154.125, and then must consider the additional factors in section
154.12312 and “specially” consider the particular factors outlined in section

12
Section 154.123, Additional Factors for Court to Consider, provides:
(a) The court may order periodic child support payments in an amount other than
that established by the guidelines if the evidence rebuts the presumption that
application of the guidelines is in the best interest of the child and justifies a
variance from the guidelines.
(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;
(5) 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 an increase or decrease in the income of the obligee
or income that may be attributed to the property and assets of the obligee;
(6) child care expenses incurred by either party in order to maintain gainful
employment;
(7) whether either party has the managing conservatorship or actual physical
custody of another child;
(8) the amount of alimony or spousal maintenance actually and currently being
paid or received by a party;
(9) the expenses for a son or daughter for education beyond secondary school;
(10) whether the obligor or obligee has an automobile, housing, or other benefits
furnished by his or her employer, another person, or a business entity;
(11) the amount of other deductions from the wage or salary income and from
other compensation for personal services of the parties;
(12) provision for health care insurance and payment of uninsured medical
expenses;

13
154.306 in determining whether to deviate from the guidelines. Father also
contends that the courts remain bound to issue section 154.130 findings when
requested and when the guidelines are not followed.13 See id. § 154.130. Further,
Father argues that courts remain bound by other general provisions from
subchapter B, Computing Net Resources Available for Payment of Child Support.
See Tex. Fam. Code Ann. §§ 154.061–.070 (West, Westlaw through 2015 R.
Sess.). These provisions include section 154.061,14 on computation of net monthly
income; section 154.062,15 on calculating net resources; and section 154.069,16

(13) special or extraordinary educational, health care, or other expenses of the
parties or of the child;
(14) the cost of travel in order to exercise possession of and access to a child;
(15) positive or negative cash flow from any real and personal property and
assets, including a business and investments;
(16) debts or debt service assumed by either party; and
(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.
13
Father separately briefs this as his sixth issue. Mother responds that under section
154.306 the trial court was not required to issue section 154.130 findings.
14
Section 154.061, Computing Net Monthly Income, provides:
(a) Whenever feasible, gross income should first be computed on an annual basis
and then should be recalculated to determine average monthly gross income.
(b) The Title IV-D agency shall annually promulgate tax charts to compute net
monthly income, subtracting from gross income social security taxes and federal
income tax withholding for a single person claiming one personal exemption and
the standard deduction.
Tex. Fam. Code Ann. § 154.061.
15
See Tex. Fam. Code Ann. § 154.062 (detailing what resources include and do not
include).
16
Tex. Fam. Code Ann. § 154.069(a) (“The court may not add any portion of the net
resources of a spouse to the net resources of an obligor or obligee in order to calculate the
amount of child support to be ordered.”). Subchapter E, Modification of Child Support, contains
a virtually identical provision. See Tex. Fam. Code § 156.404(a) (West, Westlaw through 2015
R. Sess.) (“The court may not add any portion of the net resources of a new spouse to the net
14
which prohibits adding any portion of a spouse’s net resources to calculate child
support.

We agree with Father. First, the plain language of section 154.306 indicates
that in the context of determining the amount of support for adult disabled
children, “the court shall determine and give special consideration to” the four
enumerated factors. Id. § 154.306. The adjective “special” means “unusual;
extraordinary,” “held in particular esteem” or “being other than the usual:
additional, extra.” Black’s Law Dictionary (10th ed. 2014, Westlaw); Merriam-
Webster’s Collegiate Dictionary 1197 (11th ed. 2004). Certainly, the plain text
highlights the importance of these particular factors. However, we discern no
language in section 154.306 indicating that these are the sole or exclusive factors
for courts to consider when setting child support for an adult disabled child. Id.

Moreover, we may not read a provision such as section 154.306 in isolation,
but we must always interpret it in the context of the entire law in which it is found.
See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); City of
Amarillo v. R.R. Comm’n of Tex., 894 S.W.2d 491, 494 (Tex. App.—Austin 1995,
writ denied). “[C]ontext is essential to textual analysis, something [the Supreme
Court of Texas] has held repeatedly, emphatically, and unanimously.” In re Ford
Motor Co., 442 S.W.3d 265, 273 (Tex. 2014).

Section 154.304 provides that “[e]xcept as otherwise provided by this
subchapter,” the substantive and procedural rights and remedies in a SAPCR suit
relating to the establishment, modification, or enforcement of a child support order
apply to a suit filed and an order rendered under subchapter F. Tex. Fam. Code
Ann. § 154.304. The pertinent definition of the adverb “otherwise” is “to the

resources of an obligor or obligee in order to calculate the amount of child support to be ordered
in a suit for modification.”).

15
contrary; differently.” Black’s Law Dictionary (10th ed. 2014, Westlaw); see also
Merriam-Webster’s Collegiate Dictionary 271 (11th ed. 2004) (defining noun
“contrary” as “a fact or condition incompatible with another: opposite”). With
minimal exceptions, 17 we discern nothing within any of the provisions of
subchapter F, including section 154.306, that provides “to the contrary” or
“differently” from the general child support computation, guideline, and
modification provisions—such as those provided in sections 154.061, 154.062,
154.069, 154.121, 154.122, 154.123, 154.125, 154.126,18 154.130, 154.131,19

17
The Legislature did provide “to the contrary” for certain distinct substantive and
procedural rights and remedies in the specific context of disabled children. For example,
subchapter F allows for support orders for disabled children beyond age 18 or high school
graduation. Compare Tex. Fam. Code Ann. §§ 154.001(a-1), 154.002 (West, Westlaw through
2015 R. Sess.), with id. §§ 154.302(a), 154.305(a)(1). And subchapter F expressly states that it
does not affect parents’ contractual remedies for the support of a disabled child. Compare id.
§ 154.124(c) (“Terms of the agreement pertaining to child support in the order may be enforced
by all remedies available for enforcement of a judgment, including contempt, but are not
enforceable as a contract.”), with id. § 154.308(a)(2) (West, Westlaw through 2015 R. Sess.)
(“This subchapter does not affect a parent’s . . . ability to contract for the support of a disabled
child.”).
18
Section 154.126, Application of Guidelines to Additional Net Resources, provides:
(a) If the obligor’s net resources exceed the amount provided by Section
154.125(a), the court shall presumptively apply the percentage guidelines to the
portion of the obligor's net resources that does not exceed that amount. Without
further reference to the percentage recommended by these guidelines, the court
may order additional amounts of child support as appropriate, depending on the
income of the parties and the proven needs of the child.
(b) The proper calculation of a child support order that exceeds the presumptive
amount established for the portion of the obligor’s net resources provided by
Section 154.125(a) requires that the entire amount of the presumptive award be
subtracted from the proven total needs of the child. After the presumptive award
is subtracted, the court shall allocate between the parties the responsibility to meet
the additional needs of the child according to the circumstances of the parties.
However, in no event may the obligor be required to pay more child support than
the greater of the presumptive amount or the amount equal to 100 percent of the
proven needs of the child.
Tex. Fam. Code Ann. § 154.126.
19
See Tex. Fam. Code Ann. § 154.131(a), (b) (providing that “[t]he child support
16
156.402, 20 and 156.404—when the court renders a child support order for an adult
disabled child. While section 154.306 provides for mandatory factors to be
applied—indeed, “specially considered”—after a disabled child reaches age 18, its
application is not “opposite” or “incompatible” with the application of such other
provisions. Here, the context of those surrounding provisions consistently
highlights the child support guidelines, and provides specific details, definitions,
and prohibitions for applying them properly, as well as specific considerations for
ultimately determining not to apply them. See Tex. Fam. Code Ann. §§ 154.061,
154.062, 154.069, 154.121, 154.122, 154.123, 154.125, 154.126, 154.130,
154.131, 156.402, 156.404.

Interpreting section 154.306 to trump any consideration or application of the
guidelines, or of the various provisions concerning support computation, also
would not accord with common sense. See Ford Motor Co., 442 S.W.3d at 272
(noting “[t]his text-driven analysis also accords with common sense”). The stated
intent of the Legislature in providing the child support guidelines is “to guide the
court in determining an equitable amount of child support.” Tex. Fam. Code Ann.
§ 154.121. The law presumes the guideline amount to be reasonable and in the
best interest of the child. Id. § 154.122. Likewise, with regard to retroactive child
support, the stated intent of the Legislature in providing the child support
guidelines is “to guide the court in determining the amount of retroactive child

guidelines are intended to guide the court in determining the amount of retroactive child support,
if any, to be ordered” and “[i]n ordering retroactive child support, the court shall consider the net
resources of the obligor during the relevant time period”).
20
See Tex. Fam. Code Ann. § 156.402 (West, Westlaw through 2015 R. Sess.) (providing
that courts may consider chapter 154 child support guidelines to determine whether modification
of existing order is warranted and may modify order to substantially conform to guidelines);
Friermood v. Friermood, 25 S.W.3d 758, 760 (Tex. App.—Houston [14th Dist.] 2000, no pet.)
(citing section 154.402(a) regarding courts’ discretion to deviate from guidelines in modification
proceedings).

17
support, if any, to be ordered.” Id. § 154.131. The guidelines also come into play
when courts are faced with a potential modification of an existing order. Id.
§156.402.

Even if section 154.306 might be susceptible to a guidelines-free
construction standing alone, we should not give one provision a meaning out of
harmony or inconsistent with other provisions of the same act. See Helena Chem.
Co., 47 S.W.3d at 493; In re M.R., 975 S.W.2d 51, 54 (Tex. App.—San Antonio
1998, pet. denied) (citing R.R. Comm’n of Tex., 894 S.W.2d at 494)). Beyond the
consistent backdrop of the guidelines, the various code provisions also consistently
include mandatory language regarding what courts must and must not do when
computing net resources and applying the guidelines when determining child
support. The court “shall” calculate net resources when determining child support
liability, Tex. Fam. Code Ann. § 154.062; “shall” consider evidence of the
enumerated factors when determining whether applying the guidelines would be
unjust or inappropriate, id. § 154.123(b); “shall” presumptively apply the guideline
schedule, id. §§ 154.125(b), 154.126; “shall” make findings concerning net
resources of the obligor and obligee, and the percentage applied to the obligor’s net
resources, and “shall” state reasons for any deviation from the guidelines, id.
§ 154.130; “shall” consider the obligor’s net resources in ordering retroactive child
support, id. § 154.131(b); and “may not” add a new spouse’s net resources to the
net resources of the obligor or obligee when calculating the support amount, id.
§§154.069, 156.404.

Mother has not explained how, nor can we determine that, our reading of
section 154.306 presents any conflict—much less an irreconcilable one—with the
general child support provisions. See Tex. Gov’t Code Ann. § 311.026 (West,
Westlaw through 2015 R. Sess.). To the contrary, interpreting section 154.306 in

18
the manner Mother does, with which the trial court agreed, would require us to
impermissibly give such special provision a meaning that conflicts with other
general provisions when, in fact, the provisions can be reasonably harmonized.21
See Tex. Gov’t Code Ann. §§ 311.021, 311.026 (West, Westlaw through 2015 R.
Sess.); Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002)
(“[W]e must always . . . attempt to harmonize [a statute’s] various provisions.”);
M.R., 975 S.W.2d at 54 (“The provisions of the statute must, if possible, be
harmonized.”); R.R. Comm’n of Tex., 894 S.W.2d at 494 (“[C]ourts will not give
one provision a meaning that conflicts with other provisions if the provisions can
be reasonably harmonized.”).

Finally, our interpretation is not inconsistent with any case applying or
interpreting section 154.306.22 Therefore, we conclude that, when determining

21
For example, Mother interprets the factor of “the financial resources available to both
parents” to reach the net resources of a new spouse. See Tex. Fam. Code Ann. § 154.306(3).
However, nothing within subchapter F indicates that as long as the SAPCR suit involves an adult
disabled child, the prohibition against including any portion of a new spouse’s net resources to
the net resources of the obligor in order to calculate the amount of child support would not apply.
See id. §§ 154.069, 156.404.
22
See In re L.J.M., No. 13-13-00367-CV, 2014 WL 3053209, at *4–5 (Tex. App.—
Corpus Christi July 3, 2014, no pet.) (mem. op.) (trial court applied guidelines and provided
section 154.130 findings, concluding court properly considered section 154.306 factors); In re
W.M.R., No. 02-11-00283-CV, 2012 WL 5356275, at *12–14 (Tex. App.—Fort Worth Nov. 1,
2012, no pet.) (mem. op.) (citing section 154.062 regarding obligor’s available resources beyond
earnings and concluding award not excessive where court considered sufficient evidence to
support each section 154.306 factor); Vandemark v. Jimenez, No. 01-09-00168-CV, 2010 WL
1241287, at *5–6 (Tex. App.—Houston [1st Dist.] Apr. 1, 2010, no pet.) (mem. op.) (trial court
applied guidelines based on parties’ net resources, presuming omitted transcript supported
court’s implied section 154.306 findings); Wolk v. Wolk, No. 03-06-00595-CV, 2007 WL
2682173, at *3–4 (Tex. App.—Austin Sept. 12, 2007, no pet.) (mem. op.) (trial court applied
guidelines based on evidence of obligor’s income, but on face of record court lacked sufficient
information regarding section 154.306 factors); In re M.W.T., 12 S.W.3d 598, 603, 606 (Tex.
App.—San Antonio 2000, pet. denied) (trial court applied guidelines based on obligor’s net
resources, concluding record contained evidence concerning each of section 154.306 criteria),
disapproved of on other grounds by Office of Atty. Gen. of Tex. v. Scholer, 403 S.W.3d 859 (Tex.
2013).

19
child support for adult disabled children, courts must apply section 154.306, but
they continue to remain bound under section 154.304 to consider and apply the
substantive rights and remedies applicable to SAPCR suits “[e]xcept as otherwise
provided.” See Tex. Fam. Code Ann. §§ 154.304, 154.306. In a modification suit
involving an adult disabled child, these provisions may include, among others,
those in subchapter B of chapter 154 related to computing net resources available
for support; in subchapter C related to the child support guidelines; in subchapter F
related to support for disabled children; and in subchapter E of chapter 156 related
to modification of child support. See, e.g., id. §§ 154.061, 154.062, 154.069,
154.121, 154.122, 154.123, 154.125, 154.126, 154.130, 154.131, 154.302,
154.304, 154.305, 154.306, 156.402, 156.404.

Here, the record reflects that the trial court incorrectly interpreted section
154.306 as providing the exclusive factors for its determination of child support for
J.M.W. For example, the court indicated that, when considering the financial
resources available to Father, see id. § 154.306(3), it could in its discretion
disregard section 154.069(a) and include Father’s wife’s income in its support
determination. Moreover, when rendering its findings and conclusions, despite
Father’s timely request for section 154.130 findings, the trial court refused to
provide any findings regarding the monthly net resources of Father or Mother, or
the percentage applied to Father’s net resources. See id. § 154.130(b).

We conclude that the trial court’s clear failures to analyze and apply the law
correctly in setting the amount of J.M.W.’s child support constitute an abuse of
discretion. See Walker, 827 S.W.2d at 840. Therefore, we sustain Father’s first
and second, as well as his sixth, issues. See id.; In re S.B.S., 282 S.W.3d 711, 717
(Tex. App.—Amarillo 2009, pet. denied) (failure to make section 154.130 findings
was reversible error); Omodele v. Adams, No. 14-01-00999-CV, 2003 WL 133602,

20
at *5 (Tex. App.—Houston [14th Dist.] Jan. 16, 2003, no pet.) (mem. op.)
(same). 23

Accordingly, we reverse the court’s judgment as to the award of adult
disabled child support and retroactive child support. We remand for recalculation
of the support award and issuance of findings in support of such award in
compliance with the applicable sections of the Family Code. In doing so, we
recognize that the trial court remains able to apply its considerable, valid discretion
in setting the amount of child support, including retroactive support, for J.M.W.,
and we express no opinion as to what a proper amount of child support would be.24

2. Father’s third and fourth issues

Father’s third and fourth issues—whether the trial court included or
substantially considered the income from his new spouse, and grossly exceeded the
guidelines—essentially challenge the sufficiency of the evidence supporting the
child support obligations set in the reformed order. Because we have already
granted Father the relief that he requests by his third and fourth issues in sustaining
his first, second, and sixth issues, we need not address those issues. See Tex. R.
App. P. 47.1.

23
To the extent we are required to perform any harm analysis, we cannot conclude that
such abuse of discretion was harmless here. See Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex.
1996) (“A trial court’s failure to make findings is not harmful error if the record before the
appellate court affirmatively shows that the complaining party suffered no injury.” (internal
quotation marks omitted)). Although the trial court expressly noted it was relying on joint tax
returns that included Father’s wife’s earnings and income from her property, it refused to make
any findings regarding Father’s and Mother’s monthly net resources and the percentage applied
to Father’s net resources. The court’s refusal to make findings prevented Father from effectively
contesting any deviation from the guidelines. See Tex. R. App. P. 44.1(a)(2); Tenery, 932
S.W.2d at 30; Omodele, 2003 WL 133602, at *5.
24
Our record does not reflect Father’s payment of the adult disabled child support and
retroactive support the trial court rendered in its October and December 2013 orders. However,
upon recalculation, the court should credit overpayment, if any, by Father toward his future
payments.

21
C. Motion to reopen evidence: Father’s fifth issue

Father also argues the trial court abused its discretion in refusing to reopen
the evidence to include Father and his wife’s premarital agreement in order to
demonstrate that his wife’s income was not a financial resource available to Father
for consideration when awarding child support. We disagree.

Trial courts have broad discretion to permit additional evidence to be offered
at any time when it clearly appears necessary to the administration of justice. See
Tex. R. Civ. P. 270; Gurka v. Gurka, 402 S.W.3d 341, 349 (Tex. App.—Houston
[14th Dist.] 2013, no pet.). In determining whether to grant a motion to reopen,
courts consider whether: (1) the moving party showed due diligence in obtaining
the evidence; (2) the proffered evidence is decisive; (3) reception of such evidence
will cause undue delay; and (4) granting the motion will cause an injustice. See
Naguib v. Naguib, 137 S.W.3d 367, 373 (Tex. App.—Dallas 2004, pet. denied).
We should not disturb a trial court’s ruling if all of these factors are not satisfied.
Id.

Father has not demonstrated all of these factors. For example, Father has not
shown that his own premarital agreement allegedly dating from 2002 was
unavailable to him at the time of the trial. See id. Moreover, whether such
premarital agreement provided for Father and his wife’s separate earnings and
properties to retain their separate status for purposes of a determination of a
division of property upon divorce does not appear to affect the application of the
Family Code’s prohibition against including a spouse’s net resources for purposes
of child support. See Tex. Fam. Code Ann. §§ 154.062, 154.069, 156.404; Koenig
v. DeBerry, No. 03-09-00252-CV, 2010 WL 1009170, at *4 (Tex. App.—Austin
Mar. 17, 2010, no pet.) (mem. op.) (“[E]ven though income generated by a
spouse’s separate property is community property, no portion of that income

22
should be included in calculating a child support obligor’s net resources.”); In re
Knott, 118 S.W.3d 899, 904 (Tex. App.—Texarkana 2003, no pet.) (“[A] portion
of the spouse’s assets that might traditionally be labeled as community property
but are derivative of the spouse’s separate property or employment are outside the
items which comprise the obligor’s ‘net resources’ because they would fall entirely
within the ‘net resources’ of the obligor’s spouse.”); see also Tex. Fam. Code
§ 3.102(a) (West, Westlaw through 2015 R. Sess.) (spouse has sole management
and control of community property that spouse would have owned if single,
including personal earnings and revenue from separate property). Such excluded
evidence was not decisive.

Therefore, we conclude that the trial court did not abuse its discretion in
denying Father’s motion to reopen, and we overrule this issue.

D. Attorney’s fees: Father’s seventh issue

Finally, Father argues that the trial court’s award of attorney’s fees should be
set aside, considering the errors the court committed in reestablishing child
support. Although we have concluded the trial court abused its discretion in its
setting of the amount of the child support award, we have not disturbed the trial
court’s underlying determination that the child qualifies for support, and Mother
substantially and materially prevailed on her petition to modify. See Coburn v.
Moreland, 433 S.W.3d 809, 840–41 (Tex. App.—Austin 2014, no pet.); Norris v.
Norris, 56 S.W.3d 333, 346 (Tex. App.—El Paso 2001, no pet.). The trial court
did not abuse its discretion by granting reasonable attorney’s fees to Mother’s
counsel.

However, in light of our decision today to remand for recalculation of the
child support award in accordance with the Family Code, the trial court also should
have an opportunity to decide whether it wishes to leave the amount of its
23
attorney’s fee award intact. See In re K.J.M., 138 S.W.3d 536, 538 (Tex. App.—
Houston [14th Dist.] 2004, no pet.).

We sustain Father’s seventh issue, and we remand for reconsideration of the
amount of attorney’s fees.25

III. CONCLUSION

Having sustained Father’s first, second, sixth, and seventh issues, we reverse
the trial court’s judgment with regard to its awards of adult disabled child support,
retroactive child support, and attorney’s fees. We affirm the remainder of the
judgment and remand for further proceedings in accordance with this opinion.

/s/ Marc W. Brown
Justice

Panel consists of Justices Jamison, Busby, and Brown.

25
Because we are remanding, we do not address Father’s alternative subissue requesting
our modification of the award.

24