Reversed and Remanded and Opinion Filed August 13, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00110-CV
IN THE INTEREST OF D.T.S., A CHILD
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-03-1889-R
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Francis
Opinion by Justice Bridges
Edwin Sorensen (Father) appeals the trial court’s order denying his motion to modify
child support and granting Barbara Sorensen’s (Mother) motion to enforce child support
obligation. In a single point of error, Father argues the trial court abused its discretion in
denying his motion to modify child support. We reverse and remand for further proceedings.
Mother and Father divorced in December 2005. Father paid $925 per month in child
support for the couple’s child, D.T.S. Father became disabled in April 2010; as a result, D.T.S.
received $1078 each month in social security benefit payments beginning in October 2010. In
March 2011, Mother filed a motion alleging Father had failed to make certain child support
payments and seeking an order enforcing the trial court’s child support order. Father filed a
response alleging he was unable to provide support in the amount ordered. In July 2011, the trial
court conducted a hearing on the parties’ motions to modify child support and enforce Father’s
child support obligations.
At the hearing, Father argued the $1078 social security payment D.T.S. received should
be considered an offset of Father’s $925 per month child support obligation. Because the $1078
payment exceeded Father’s child support obligation, Father argued he should have no further
obligation. Mother testified that D.T.S., nineteen at the time of the hearing, is disabled and
requires twenty-four-hour care.1 Mother testified D.T.S. has diabetes, “her cognitive level is age
two,” and she is “nonverbal.” D.T.S. requires $900 per month for her supplies, including
medications and medical supplies. Mother testified she was in Chapter 13 bankruptcy and had
not made a mortgage payment in a year. At the time of the hearing, Mother was on short-term
disability because she had fallen on a previously reconstructed ankle, and she expected to be put
on permanent disability. In light of her testimony, Mother asked the trial judge to order Father to
continue to make the $925 payment in addition to the $1078 social security payment.
In closing arguments, Father’s counsel asked the court to reduce Father’s child support
payments to zero and stated, though Father did not want D.T.S. institutionalized, “that’s where
we’re likely headed.” Mother’s counsel emphasized “this is not a guideline support case” and
stated, “the Court has the evidence.” Mother’s counsel asked that “the child support continue in
addition to the social security disability payments.”
On July 14, 2011, the trial court entered an order containing its findings that Father had
failed to make child support payments from October 2010 through June 2011. The order found
Father in contempt of court and ordered him to serve ninety days in Dallas County jail “and as
long thereafter until he pays the sum of $7162.17.” The order suspended Father’s sentence as
long as he continued to pay $925 together with $200 per month on the arrearage of $7162.17
until fully paid. In addition, the order contained the trial court’s findings that D.T.S.’s minimum
reasonable needs are in the sum of $2918.36, mother’s monthly resources were $1820.53, and
1
The nature and severity of D.T.S.’s disability was not contested.
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Father’s monthly resources were $3249.80, including a $300 deduction for medical insurance on
D.T.S. The court found that father’s share of D.T.S.’s needs, after reducing by the amount of
social security disability payments, is $1196.23. Accordingly, the trial court found that Father
failed to show a material and substantial change of circumstances to justify a reduction of child
support. However, because Mother had not requested an increase in the child support payment
from Father, the court did not increase the amount Father was required to pay. This appeal
followed.
In a single point of error, Father argues the trial court abused its discretion in denying his
motion to modify child support. Specifically, Father argues he is entitled to an offset of $1078 in
social security benefits D.T.S. receives, bringing his support obligation to zero. We agree.
We review a trial court’s judgment on child support for an abuse of discretion. See
Woxford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re K.N.C., 276 S.W.3d 624, 626 (Tex.
App.—Dallas 2008, no pet.). Section 154.132 of the family code, upon which Father relies,
provides that in applying the child support guidelines for an obligor who has a disability and who
is required to pay support for a child who receives benefits as a result of the obligor’s disability,
the court shall apply the guidelines by determining the amount of child support that would be
ordered under the child support guidelines and subtracting from that total the amount of benefits
of the value of the benefits paid to or for the child as a result of the obligor’s disability. TEX.
FAM. CODE ANN. § 154.132 (West 2008).
Here, the trial court’s order specifically shows Mother did not request an increase in
Father’s monthly child support payment, and the trial court did not raise the amount of Father’s
payment from $925. We conclude the trial court, in violation of section 154.132, failed to
subtract the $1078 in benefits from the amount the trial court determined was Father’s share of
child support, $925. See id. § 154.132. Thus, the trial court abused its discretion in failing to
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offset Father’s $925 child support obligation by the $1078 amount received in benefits. See id.;
Woxford, 801 S.W.2d at 109; In re K.N.C., 276 S.W.3d at 626. We sustain Father’s point of
error.
We reverse the trial court’s judgment and remand for further proceedings.
/David L. Bridges/
120110F.P05 DAVID L. BRIDGES
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF D.T.S., A CHILD On Appeal from the 254th Judicial District
Court, Dallas County, Texas
No. 05-12-00110-CV Trial Court Cause No. DF-03-1889-R.
Opinion delivered by Justice Bridges.
Justices O'Neill and Francis participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED, and this cause is REMANDED for further proceedings.
It is ORDERED that appellee Barbara Sorensen recover her costs of this appeal from
appellant Edwin Sorensen.
Judgment entered August 13, 2013
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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