Affirmed as Modified and Majority and Concurring Opinions filed May 22, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00281-CV
IN THE INTEREST OF A.B., A CHILD
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 2008-59828
MAJORITY OPINION
Appellant, Father of the minor child, A.B., appeals the portion of a “Final Order
Under Uniform Interstate Family Support Act,” requiring that he pay retroactive child
support and post-judgment interest thereon for A.B.1 In six issues, Father challenges the
award of any retroactive support or alternatively the amount of such support and contends
the trial court recited an incorrect rendition date in the order relative to accrual of post-
judgment interest. We modify the order to reflect the correct rendition date and affirm as
modified.
1
On the court’s own motion, we will refer to the child using fictitious initials and to the parents
as “Father” or “Mother.” See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2011).
I. BACKGROUND
Mother became pregnant with A.B. during a brief relationship with Father while
he was working in Russia, Mother’s native country. During the pregnancy, Father paid
travel expenses for Mother’s relocation to Colorado, where A.B. was born on January 19,
1994. After the birth, Mother wrote to Father, expressing that she assumed full
responsibility for A.B. but requested temporary assistance until she could establish
financial stability. For at least four years, Father made regular payments for support of
A.B.—through either a ministry that employed Mother or directly to Mother—and a few
lump sum payments. Although Mother and Father disagree regarding the date of the last
payment, they agree that the total payments averaged at least $460 per month.
Additionally, since Mother gained eligibility for participation in an employer-sponsored
health plan in 1996, she has paid all premiums and health-care expenses for A.B.
Mother testified that Father quit making any support payments in mid-July 1998
and refused her request for additional support, so she retained an attorney. The record
includes a February 1999 letter from Mother’s attorney to Father, expressing Mother’s
intent to establish a support obligation and her desire to amicably resolve the issue
without legal action. According to Mother, Father responded by phoning Mother and
threatening the following actions if she continued to pursue a support obligation: “I will
bleed you to death. I will take your child away. I will deport you. You will never see
[A.B.].” Mother testified that, based on fear of these threats, she did not further pursue a
support obligation until she contacted her local “social service” in 2006 when the child’s
expenses increased.
In contrast, Father denied making any threats. Instead, Father testified he quit
making payments after receiving the February 1999 letter because an attorney advised
that Father establish an agreement before making further payments and he wished to
obtain information about Mother’s income and A.B.’s needs. The record includes a
responsive letter to Mother’s attorney, in which Father also indicated his desire to
amicably resolve the issue but requested information regarding Mother’s income and
2
A.B.’s expenses and expressed concern about A.B.’s living environment. Father testified
that he received no response or further request for support until 2008, when he was
served with the present suit. However, during this period, Father sent A.B. some cards
and gifts, enrolled her in the Texas Tomorrow Fund, a pre-paid college tuition plan, and
paid $185 per month into the plan from its inception in 2002 through the time of trial in
2010.
In 2008, the Office of the Attorney General of Texas (“Attorney General”) filed
the present suit against Father under the Uniform Interstate Family Support Act seeking
to establish a child-support obligation for A.B., who still resided in Colorado at that time.
The Attorney General later supplemented its request to also seek medical and retroactive
support. The trial court signed an agreed temporary order requiring Father to pay
prospective child support of $1,100 per month and medical support, beginning May 1,
2009.2 Mother then filed a petition, seeking to establish Father’s paternity and requesting
current and retroactive child support and medical support.
On October 25, 2010, the trial court conducted a bench trial, during which the
primary issue was the request for retroactive support. After hearing evidence, the trial
court orally announced it found Father should have paid $1,000 per month for the period
between August 1, 1998 and April 30, 2009 (129 months) for a total of $129,000, and this
figure included retroactive medical support. On November 5, 2010, the trial court signed
a “Final Order Under Uniform Interstate Family Support Act,” requiring Father to pay
prospective child support of $1,100 per month, prospective medical support of $125 per
month, retroactive support of $129,000, representing the above-referenced period,
payable in monthly installments, and post-judgment interest on the retroactive award.3
Father timely filed a motion for new trial, which the trial court denied by written order.
2
The parties agreed that Father, who was earning $125,000 annually as of 2009, had monthly net
resources of at least $7,500 for purposes of applying the child-support guidelines. See Tex. Fam. Code
Ann. § 154.125 (West Supp. 2011).
3
The trial court also found that Father is the father of A.B. and owes a duty of support. On
appeal, Father does not raise any issues concerning paternity.
3
II. ANALYSIS
On appeal, Father challenges only the portion of the order requiring payment of
retroactive child support and post-judgment interest thereon.
A. Challenge to Any Retroactive Support
In his first issue, Father challenges the requirement that he pay any retroactive
support. We review a trial court’s award of retroactive support for abuse of discretion.
In re Q.D.T., No. 14-09-00696-CV, 2010 WL 4366125, at *2 (Tex. App.—Houston [14th
Dist.] Nov. 4, 2010, no pet.) (mem. op.) (citing Worford v. Stamper, 801 S.W.2d 108,
109 (Tex. 1990); Garza v. Blanton, 55 S.W.3d 708, 710 (Tex. App.—Corpus Christi
2001, no pet.)). A trial court abuses its discretion when it acts arbitrarily or
unreasonably, without reference to any guiding rules or principles, or fails to correctly
analyze or apply the law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Under the abuse-
of-discretion standard, legal and factual sufficiency are not independent grounds of error,
but are relevant factors in assessing whether the trial court abused its discretion. In re
A.L.S., 338 S.W.3d 59, 65 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); Q.D.T.,
2010 WL 4366125, at *2. A trial court does not abuse its discretion when some evidence
of a substantive and probative character supports its order. Q.D.T., 2010 WL 4366125, at
*2; Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th Dist.]
2004, no pet.). When, as in the present case, the trial court does not file findings of fact
and conclusions of law, we imply the trial court made all findings necessary to support its
judgment and will uphold those findings if supported by sufficient evidence. A.L.S., 338
S.W.3d at 65.4
4
Father timely requested the trial court to make findings of fact and conclusions of law and
subsequently filed a timely notice of past due findings of fact and conclusions of law. See Tex. R. Civ. P.
296, 297. The trial court then requested that the parties submit proposed findings and conclusions, and all
parties complied. However, the trial court did not file any findings or conclusions. On appeal, Father
does not challenge the trial court’s failure to make findings or conclusions.
4
Under Texas law, on a finding of parentage, a trial court may order retroactive
child support as provided in Family Code Chapter 154. Tex. Fam. Code Ann. §
160.636(g) (West 2008).5 Under Chapter 154, a trial court may order a parent to pay
retroactive child support if the parent (1) has not previously been ordered to pay support
for the child, and (2) was not a party to a suit in which support was ordered. Id. §
154.009(a) (West 2008). Undisputedly, Father was not previously ordered to pay support
for A.B. and was not a party to a suit in which support was ordered.
In ordering retroactive support, the court “shall apply” the child-support guidelines
prescribed in Family Code Chapter 154. Id. § 154.009(b) (West 2008). Section 154.131,
entitled “Retroactive Child Support,” includes the following provisions:
(a) The child support guidelines are intended to guide the court in
determining the amount of retroactive child support, if any, to be ordered.
(b) In ordering retroactive child support, the court shall consider the net
resources of the obligor during the relevant time period and whether:
(1) the mother of the child had made any previous attempts to notify the
obligor of his paternity or probable paternity;
(2) the obligor had knowledge of his paternity or probable paternity;
(3) the order of retroactive child support will impose an undue financial
hardship on the obligor or the obligor’s family; and
(4) the obligor has provided actual support or other necessaries before
the filing of the action.
Id. § 154.131(a), (b) (West 2008).
Father relies on the factors outlined in section 154.131(b) and the following
alleged facts to support his argument that the trial court abused its discretion by ordering
any retroactive support: Father’s relationship with Mother was brief; Mother expressed
5
Subject to exceptions inapplicable in the present case, a Texas court, when acting as responding
tribunal in a proceeding under the Uniform Interstate Family Support Act shall (1) apply procedural and
substantive law generally applicable to similar proceedings originating in Texas and may exercise all
powers and provide all remedies available in those proceedings, and (2) determine the duty of support and
amount payable in accordance with the law and support guidelines of Texas. Tex. Fam. Code Ann. §
159.303 (West 2008).
5
her intent to assume full responsibility for the child and requested only temporary
assistance; Father nonetheless provided support beyond the temporary period; when
Mother then requested establishment of a support obligation, Father indicated his desire
to resolve the issue; on advice of counsel, he quit making payments to await the outcome
of legal proceedings, which did not materialize at the time; Mother’s claim that Father
threatened various repercussions if she further pursued a formal support obligation is
belied by the fact he voluntarily provided support beyond the requested temporary period,
the tone of his written response to the February 1999 letter from Mother’s attorney, and
the fact he continued sending cards and gifts to A.B. after this letter; Mother requested
support after ten years of “silence,” although she knew Father’s whereabouts during this
period; Mother testified she sought retroactive support primarily to enable A.B. to attend
college but Father voluntarily established the college tuition plan and made continual
payments toward satisfaction of its contractual terms; and retroactive support would
create a financial hardship because of Father’s prospective support obligation of $1,100
per month for A.B. and his responsibility to provide for his other three minor children
and a minor stepchild who all live in Father’s home.
We conclude the trial court did not abuse its discretion by ordering retroactive
support. Regardless of the length of his relationship with Mother, Father does not dispute
that he fathered A.B. and knew about the child since her birth. Therefore, the evidence
supports a finding that Father should have continually supported the child irrespective of
whether Mother viewed the responsibility as solely her own and requested only
temporary assistance.6 Moreover, as Father suggests, the support he provided for at least
four years after the birth can be characterized as more than “temporary”; yet, this fact
supports the trial court’s decision because Father then quit making any payments for ten
years despite his proven ability to provide some support. In fact, although the record
lacks direct evidence of Father’s income for some of these years, he has been continually
6
Father also cites his request that Mother terminate the pregnancy when arguing he should not
have been required to pay retroactive support. However, such fact has no relevance in a determination of
whether to order payment of child support, for the reasons further discussed by our concurring colleague.
6
employed by the same company since A.B.’s birth, further indicating he had the ability to
support the child. Further, the trial court was free to believe Mother’s testimony
regarding Father’s threats and conclude she requested continued assistance but he quit
making payments because of her attempt to establish a formal obligation; or,
alternatively, even if Father made no threats and Mother voluntarily refrained from
pursuing a formal obligation, Father should have continued to support A.B. during the
ten-year period instead of making an ill-advised decision to cease payments.
Additionally, the trial court acted within its discretion by concluding that Father’s
responsibility to provide for his younger children did not negate a finding that retroactive
support for A.B. is appropriate. Father testified that the temporary support obligation for
A.B. of $1,100 per month in effect at the time of trial (the same amount as the
prospective support obligation imposed in the final order) had triggered elimination of his
younger children’s extracurricular activities and generally created a “hardship.”
However, he presented no specific evidence that he was unable to provide for the
younger children’s past needs because of the temporary support obligation or their future
needs upon rendition of a final obligation or retroactive award. Without more specific
information regarding the “hardship,” the trial court could have determined that Father,
who earned $125,000 annually at the time of trial, had financial capability to support the
younger children and pay retroactive support for A.B. In fact, the final order indicates
the trial court may have considered Father’s obligation to also support the younger
children because the court ordered that the retroactive award be paid in monthly
installments of $500 while Father is paying prospective support for A.B. and monthly
installments of $1,600 when the prospective obligation terminates; i.e., the court ensured
Father would not be required to pay more than $1,600 per month at any time.
Finally, the trial court could have determined that retroactive support was proper
irrespective of Father’s payments into the college tuition plan. Despite Mother’s
testimony that her primary goal in obtaining retroactive support was enabling A.B.’s
college education, the trial court was not bound by her expressed wishes; instead, the
7
court could have found that some retroactive support was proper to account for the
child’s needs for the ten-year period in which Father paid no support. The trial court
could have also considered there was no requirement that funds in the plan be used for
A.B.’s college expenses: neither Mother nor A.B. control the funds, Father bears no
obligation to continue funding the plan, and Father will forfeit only an administrative fee
and accrued interest if he obtains a refund of existing funds in the plan. Father asserts the
trial court could have alleviated this “speculative” aspect by ordering Father to continue
funding the plan until the contract is fully satisfied, characterizing this obligation as
additional child support, and assigning the benefits of the plan to Mother and/or A.B.
However, the court acted within its discretion by implicitly rejecting this proposition and
instead permitting Mother to decide whether to use some or all of the retroactive award
for A.B.’s education while allowing Father to control disposition of existing funds in the
plan and decide whether to continue funding the plan.
In sum, because some evidence supports the trial court’s decision, it did not abuse
its discretion by ordering retroactive support. We overrule Father’s first issue.
B. Challenge to Amount of Retroactive Support
Father’s second, third, and fourth issues all concern the amount of the retroactive
support award.
1. Presumption under section 154.131
In his second issue, Father contends the trial court abused its discretion by failing
to apply the presumption addressed in Family Code section 154.131(c) and (d):
(c) It is presumed that a court order limiting the amount of retroactive
child support to an amount that does not exceed the total amount of support
that would have been due for the four years preceding the date the petition
seeking support was filed is reasonable and in the best interest of the child.
(d) The presumption created under this section may be rebutted by
evidence that the obligor:
8
(1) knew or should have known that the obligor was the father of the
child for whom support is sought; and
(2) sought to avoid the establishment of a support obligation to the child.
Id. § 154.131(c), (d). Father contends the trial court was required to limit retroactive
support to the amount that would have been due for the referenced four-year period
because there was no evidence Father sought to avoid establishment of a child-support
obligation. We disagree.
Contrary to Father’s suggestion, under its plain language, section 154.131(c) does
not prohibit a trial court from ordering retroactive support for a period greater than the
referenced four years or provide that only an award limited to the four-year period is
reasonable and in the child’s best interest, absent the circumstances described in section
154.131(d). See id. § 154.131(c), (d); see also In re B.R., 327 S.W.3d 208, 212 (Tex.
App.—San Antonio 2010, no pet.), disapproved of on other grounds by Iliff v. Iliff, 339
S.W.3d 74 (Tex. 2011). Rather, the presumption applies if the trial court limits
retroactive support to the four-year period; in such a case, the parent who sought more
than an amount representing the four years must rebut the presumption. See Tex. Fam.
Code Ann. § 154.131(c), (d); see In re B.R., 327 S.W.3d at 212. Because the trial court
did not limit retroactive support in the present case to the four-year period, the
presumption does not apply.
Nonetheless, even if we adopt Father’s construction of section 154.131(c) and (d),
the Attorney General and Mother did rebut the presumption because it is undisputed
Father knew he was A.B.’s father and the Attorney General and Mother presented
evidence Father sought to avoid establishment of a child-support obligation. See Tex.
Fam. Code Ann. § 154.131(d). Father suggests that the exception mentioned in section
154.131(d) refers to actions intended to “actively” avoid establishment of a child-support
obligation, such as concealing one’s whereabouts, substantially delaying support
proceedings, or intentionally reducing one’s income. However, this provision contains
no such limitations. See id. Based on Mother’s testimony that Father threatened
repercussions if Mother pursued a formal child-support order, the trial court would not
9
have abused its discretion by determining Father “sought to avoid the establishment of a
support obligation.” See id. Accordingly, we overrule appellant’s second issue.
2. Calculation of $129,000
Father’s third and fourth issues are interrelated. In his third stated issue, Father
contends the trial court abused its discretion by awarding $129,000 in retroactive support
because the evidence is legally and factually insufficient to support that amount. In his
fourth stated issue, Father contends the trial court abused its discretion by failing to
utilize federal minimum wage to determine Father’s net resources for purposes of
calculating retroactive support for certain years. The gist of these issues is that the trial
court abused its discretion by failing to properly apply the guidelines for determining
prospective child support which would have yielded a lower figure than $129,000.
Specifically, Father posits that a conflict exists between sections 154.009(b) and
154.131 relative to the method for determining the amount of retroactive support: section
154.009 provides that the trial court “shall apply” the child-support guidelines prescribed
in Chapter 154 when ordering retroactive support; Tex. Fam. Code Ann. § 154.009(b);
but section 154.131 provides that the child-support guidelines are “intended to guide the
court” in ordering retroactive support and the court “shall consider” the obligor’s net
resources during the relevant period in addition to other factors listed in section 154.131.
Id. § 154.131(a), (b). According to Father, these provisions are reconcilable as follows:
the court must calculate retroactive support by applying the prospective child-support
guidelines, which require application of defined percentages to net resources for each
month in the relevant period, and then may adjust downward using the factors listed in
section 154.131(b). See Tex. Fam. Code Ann. § 154.125–.129 (West 2008 & Supp.
2011) (providing that, when calculating prospective support, the trial court “shall
presumptively apply” a defined percentage (based on the number of children the obligor
is required to support) to his monthly net resources that are not greater than $7,500 and
may order additional amounts if net resources exceed $7,500, depending on the parties’
10
incomes and proven needs of the child); id. § 154.062 (West Supp. 2011) (providing that
net resources are the obligor’s income minus various taxes and expenses).
Father testified his salary was at least $100,000 in 2006 and $125,000 annually for
2007 through 2009; however, there was no direct evidence regarding his salary for 1998
through 2005. Therefore, Father argues that the trial court was required to utilize federal
minimum wage when calculating support for 1998 through 2005 but ignored this
statutory mandate and arbitrarily selected $1,000 “across the board” as the monthly
support figure for all those years. See id. § 154.068 (West 2008) (providing that, absent
evidence of a party’s wage and salary income, the court “shall” presume his wages or
salary equal federal minimum wage for a 40-hour week). Father also suggests that the
$1,000 per month retroactive award was arbitrary even for 2006 through 2009 under a
precise application of the defined percentages to his net resources for those years. In his
appellate brief, Father outlines the amount of retroactive support that purportedly should
have been ordered for each year in the retroactive period under the guidelines.
We conclude appellant failed to preserve error on his contention. To preserve an
issue for appellate review, a party must make a timely objection or request to the trial
court, sufficiently stating the specific grounds for the requested ruling, unless apparent
from the context, and obtain an adverse ruling. See Tex. R. App. P. 33.1(a). We
recognize that, following a bench trial, a party may assert a legal or factual sufficiency
complaint for the first time on appeal. See Tex. R. App. P. 33.1(c). Appellant
incorporates a sufficiency complaint into one of his issues. However, as noted above,
sufficiency contentions are not independent points of error when the abuse-of-discretion
standard applies and instead are merely factors in the abuse-of-discretion analysis. See
A.L.S., 338 S.W.3d at 65. In fact, the crux of Father’s interrelated third and fourth issues
has more than a sufficiency component; he contends the trial court abused its discretion
by arbitrarily selecting $1,000 per month in retroactive support instead of applying the
statutory prospective support guidelines which require application of defined percentages
to net resources for every relevant year; or alternatively, even if the trial court purported
11
to apply these guidelines, its calculations did not comport with the guidelines. Within
this contention, Father presents a sub-issue that the trial court was required to presume
Father earned minimum wage to calculate net resources for certain years because there
was no evidence of his income during those years.7 A contention that a trial court abused
its discretion is not an exception to the rule requiring preservation of error. See Tex. R.
App. P. 33.1; Knight v. Knight, 301 S.W.3d 723, 730 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (holding wife waived complaint that trial court abused its discretion in
dividing marital property by improperly valuating wife’s 401(k) when evidence showed
value should be reduced by a loan against the 401(k)); Knight v. Knight, 131 S.W.3d 535,
539–40 (Tex. App.—El Paso 2004, no pet.) (holding father waived contention that trial
court abused its discretion by basing current and retroactive child support on father’s
income several years before trial rather than minimum wage absent evidence concerning
husband’s current income).
When the trial court orally announced its decision after hearing evidence, Father
did not object or otherwise raise the complaint presented on appeal. In his motion for
new trial, Father presented only two arguments with respect to retroactive support. He
raised the contention regarding the four-year presumption, discussed above. He also
asserted, “The Court did not take into account all issues related to determining retroactive
child support” and cited the provisions of section 154.131 relative to matters a trial court
7
Because a trial court’s oral comments do not substitute for findings of fact and conclusions of
law, In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984), we do not necessarily agree that the trial court
awarded $1,000 per month “across the board.” Moreover, we cannot foreclose the possibility that the trial
court did apply the prospective support guidelines, utilized minimum wage to calculate net resources for
1998 through 2005, and applied the defined percentages to net resources for all relevant years, yet the
court found the evidence justified a variance from application of the guidelines for some or all relevant
years. See Tex. Fam. Code Ann. §§ 154.122, .123(a) (West 2008) (providing that trial court may
determine application of the statutory guidelines would be “unjust or inappropriate under the
circumstances” and may deviate from the guidelines if evidence rebuts the presumption that application
thereof “is in the best interest of the child and justifies a variance”); id. § 154.123(b) (West 2008)
(providing court “shall” consider evidence of all relevant factors, including certain enumerated factors,
when deciding whether application of the guidelines would be unjust or inappropriate under the
circumstances). On appeal, Father does not directly challenge an implied finding that a variance was
justified. Regardless, we need not decide whether the trial court was required to apply the prospective
guidelines or whether its calculations comported with the guidelines because Father did not preserve error
on his complaint.
12
must consider when ordering retroactive support. However, Father, specifically confined
his argument that any retroactive support, or the amount thereof, was improper under
section 154.131 to mentioning the financial hardship on his younger children, his prior
support of A.B., and his “offers” to resolve the support issue when he was contacted by
Mother’s attorney in 1999. In a brief supporting his motion for new trial, Father
reiterated these arguments and more particularly defined the prior support referenced in
the motion as his previous payments to Mother and funding of the college tuition plan.
However, in the motion and brief, Father never challenged the amount of support on the
ground the trial court failed to apply the prospective support guidelines, much less that it
failed to utilize minimum wage for years lacking evidence of Father’s income or deviated
from the guidelines even for years in which evidence established his income.
Accordingly, we overrule Father’s third and fourth issues.
3. Refusal to apply credit for other support
In his fifth issue, Father contends the trial court abused its discretion by failing to
apply credit against the retroactive award for his support of A.B. since 2002—namely,
payments into the college tuition plan. Whether “the obligor has provided actual support
or other necessaries before the filing of the action” is a factor relative to determination of
retroactive child support. Tex. Fam. Code Ann. § 154.131(b)(4). However, this
provision includes no requirement that the trial court must credit a retroactive award if the
obligor has provided any actual support. See id. Again, we apply the same reasoning
discussed above when addressing the college tuition plan with respect to the trial court’s
decision to award any retroactive support: the court acted within its discretion by
permitting Mother to decide whether to use some or all of the retroactive support for
A.B.’s college education while allowing Father to control funds in the plan, rather than
ordering that the funds be used for A.B.’s college education and applying a credit against
the retroactive award. We overrule Father’s fifth issue.
13
C. Rendition Date of the Order Relative to Accrual of Post-Judgment Interest
In his sixth issue, Father argues the trial court recited an incorrect rendition date in
the order which affects the accrual date for post-judgment interest. In its order, the trial
court recited,
It is FOUND that retroactive child support should be ordered for the period
between August 1, 1998 and April 30, 2009 in the amount of $129,000.00,
as of April 30, 2009 . . .
(emphasis added). The court then ordered that interest be paid at the rate of six percent
per annum. Although not exactly clear, the trial court apparently recited April 30, 2009
as the rendition date of its order for all purposes, including accrual of post-judgment
interest. See id. § 157.265(c) (West 2008) (providing that interest accrues on money
judgment for retroactive child support at annual rate of six percent simple interest from
date order is rendered until judgment is paid).
As Father suggests, the order was rendered on October 25, 2010 when the trial
court orally announced its decision after hearing evidence. See S & A Rest. Corp. v. Leal,
892 S.W.2d 855, 857 (Tex. 1995) (stating rendition occurs when trial court announces its
decision in open court or files written memorandum with the clerk). The Attorney
General and Mother agree the order should be modified to clearly reflect October 25,
2010 as the rendition date. Accordingly, we sustain Father’s sixth issue.
We modify the trial court’s order to change the language “as of April 30, 2009” in
the above-quoted paragraph to “as of October 25, 2010” and affirm the order as modified.
/s/ Charles W. Seymore
Justice
Panel consists of Justices Frost, Seymore, and Jamison (Frost, J., concurring).
14