Case Number: 05-08-00438-CV 06/06/2011 Case stored in record room 05/25/2011 Notice sent to Court of Appeals 04/15/2011 Petition for Review disposed proceeding denied 03/01/2011 Response to Petition for Review filed 01/26/2011 Motion for Extension of Time disposed. Granted 01/21/2011 M/E/T to file response 12/29/2010 Supreme Court of Texas Requested Response; mailbox rule does not apply 11/18/2010 Supplemental appendix 11/17/2010 Call received 11/16/2010 Case forwarded to Court 11/16/2010 Phone call from Clerk's Office 11/04/2010 Phone call from Clerk's Office 10/14/2010 Petition for Review filed 10/14/2010 Appendix Filed 09/30/2010 M/E/T to file petition for review disposed Granted 09/29/2010 M/E/T to file petition for review filed [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 527 OPINION
Stacy Scannell (Mother) appeals the trial court's order granting the motion of Stephen Scannell (Father) to modify his child support obligation. Mother asserts five issues on appeal. In issues one and two, Mother argues the trial court erred as a matter of law by not including in the calculation of Father's "net resources" a cash inheritance Father received subsequent to the parties' divorce, the value of Father's personal use of his company's truck, and a $1000 monthly health insurance premium paid on Father's behalf by his company. Alternatively, in her third issue, Mother asserts the trial court abused its discretion by not considering Father's inheritance, the value of his personal use of his company's truck, and the health insurance premium paid on his behalf by his company as "additional factors" supporting departure from the statutory child support guidelines. In her fourth and fifth issues, Mother contends the trial court abused its discretion by not requiring Father to contribute to the children's private school tuition and by finding that there had been a material and substantial change of circumstances that warranted modification of the parties' prior child support provisions.
We conclude the trial court erred by failing to include Father's $400,000 cash *Page 528 inheritance in calculating his net resources, but did not err by not including the value of Father's personal use of his company's truck or the health insurance premium paid on his behalf by his company in calculating such resources. Further, we conclude the trial court did not abuse its discretion by (i) failing to consider the value of Father's use of the company truck or the health insurance premium paid on his behalf as factors supporting departure from the statutory child support guidelines, where the evidence did not support such consideration; (ii) failing to require Father to contribute to the children's private school tuition; or (iii) finding there had been a material and substantial change in circumstances that warranted modification of the prior order regarding child support. We affirm the trial court's order in part, reverse in part, and remand this case to the trial court for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND The parties have two children, P.C.S. and L.R.S., who were eighteen years old and fifteen years old, respectively, at the time of trial. Both children have developmental and psychological issues, including Asperger's syndrome, and L.R.S. is also bi-polar. Witnesses testified that the children will require medication and counseling all their lives. The children are enrolled in private schools specializing in teaching children with such issues. Each child also regularly sees a therapist for counseling and a psychiatrist for medication management.
The parties were divorced pursuant to a September 12, 2003 agreed divorce decree. Under the decree, both parents were designated as joint managing conservators, and Mother had the right to establish the children's primary residence. The decree required Father to pay regular child support of $1500 per month for both children, provide them with health insurance, and pay half of the children's school tuition and sports-club charges. By the time of trial, half of the children's tuition was $1850 per month, and half of the sports-club charges was $62.50 per month. The decree required each party to pay half of the children's medical expenses incurred with in-network medical providers. Any expenses for non-network medical providers were to be borne by the party who took the children to that medical provider. The children's therapists and psychiatrist selected by Mother are not part of either parent's medical insurance network, so Mother receives little assistance in paying those expenses from medical insurance and no assistance from Father.
At the time of the divorce in 2003, Father was employed as a mechanical engineer in the food-processing industry, earning about $110,000 per year. Mother was a psychologist working for a veterans' hospital, earning about $160,000 per year. In 2004, Father remarried and bought a house in Plano. In early 2005, he was laid off from his job and given a severance package of six-months' salary and benefits. Despite applying for many positions in the food-processing industry, he was unable to obtain employment in that field. Between the time he was laid off and July 2005, Father used retirement funds, which were "liquidated through deferred compensation," to pay back loans and cover living expenses. In July 2005, Father filed a motion to modify his child support. The trial court issued temporary orders in August 2005 reducing Father's child support to $305 per month and suspending his obligation to pay a portion of the children's tuition and sports-club charges.
Between August 2005 and early 2006, Father had two short-term consulting jobs. *Page 529 On January 26, 2006, the parties agreed to modify the temporary orders. Under the modified temporary orders, Father's child support was raised to $686.03, retroactive to November 2005. In addition, Father agreed to pay P.C.S.'s tuition for November and December 2005. Further, the parties agreed that in future months where Father's net resources exceeded $6000, Father "shall additionally pay a proportionate share of the school tuition" for P.C.S.
In late 2005 and early 2006, Father received, in at least two installments, a cash inheritance of approximately $400,000 from his aunt's estate.2 Having been unable to find steady employment in the food-processing industry, Father decided to go into business for himself. With $30,000 from his inheritance, he purchased a franchise from "Andy OnCall," a home-handyman business, in January 2006. Also, he invested about $30,000 more from the inheritance in setting up the business. Father's wife then left her job at the post office and went to work for the new business, 3 which "got off the ground" in March 2006. During the first year of business, Father and his wife were unable to pay themselves salaries because the business was not yet profitable. Accordingly, Father used money from his inheritance to pay their living expenses, child support, and some accumulated debts. In the second year of operation, the business was doing well enough that it paid them each a salary of $6000 per month and paid $1000 per month for the health insurance that covered Father, his wife, and her adult son. Father used $150,000 of the money remaining from the inheritance to purchase an annuity retirement investment to replenish the retirement funds he had used during 2005 to pay debts and cover living expenses, 4 and he provided $1000 of the inheritance to his wife's son to help him purchase a vehicle. The remainder of the inheritance, about $75,000, was placed in a money market fund to be used during periods when business was slow. The money market fund earns $38 interest per month.
Father filed an amended motion to modify on February 14, 2007. On March 2, 2007, an associate judge modified Father's child support obligation to $1750 per month. On September 12, 2007, the trial court again modified the temporary orders to require Father to pay child support of $921.86 per month.
The case went to trial before the trial court on November 29, 2007, with a second hearing on February 5, 2008. Mother testified that because of the reduced child support and loss of assistance with the children's tuition, she had gone into debt to keep the children in their schools and to pay their therapists. Mother took out a home equity loan, borrowed $36,000 from an education-services lender to pay the children's tuition, and, in addition to those debts, owed P.C.S.'s school over $44,000. She could no longer afford child care, had used up all her vacation and sick leave to care for the children, and was facing the prospect of having to take leave without pay if she missed any more work to care for the children. *Page 530
In its March 13, 2008 final order on the motion to modify, the trial court found in relevant part (1) "the circumstances of the child or a person affected by the order have materially and substantially changed," requiring modification of the order; (2) Father's monthly net resources are $4097; (3) child support under the guidelines of the family code would be twenty-five percent of net resources, or $1024.25; (4) application of the family code's child support guidelines "would be inappropriate" because both children have special needs necessitating deviation from the guidelines; and (5) Father should pay additional support in the amounts of $170 per month for reimbursement of the insurance carried by Mother and $400 per month "to cover additional special medical needs of the children." As in the original decree, the modified order required each of the parents to pay one-half of the children's uninsured and non-reimbursed medical expenses incurred with in-network health-care providers, but any out-of-pocket expenses for non-network medical providers were to be borne by the party who took the children to that medical provider. Finally, the trial court found the "amount of actual child support ordered to be paid" by Father was $1594.33 per month, which was approximately thirty-nine percent of his monthly net resources before payment of medical expenses. In its May 1, 2008 findings of fact and conclusions of law, the trial court concluded in relevant part that an inheritance is not included in the statutory definition of "net resources" for the purpose of setting the amount of child support. This appeal timely followed.
II. MATERIAL AND SUBSTANTIAL CHANGE IN CIRCUMSTANCES As a threshold matter, we begin with Mother's fifth issue, in which she contends the trial court abused its discretion by finding there had been a material and substantial change in circumstances since the entry of the divorce decree requiring modification of the child support provisions.
A. Standard of Review and Applicable Law When, as here, the parties have agreed to a support order for child support that is different from the amount required by the child support guidelines, the trial court has discretion to modify the support order "only if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order's rendition." TEX. FAM. CODE ANN. § 156.401(a-1) (Vernon 2008). The movant on a motion to modify has the burden to show the requisite material and substantial change in circumstances since rendition of the previous order. Farish v. Farish,921 S.W.2d 538, 541 (Tex.App.-Beaumont 1996, no writ). "In determining whether there has been a material and substantial change in circumstances, it is well-settled that the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought."In re C.C.J., 244 S.W.3d 911, 917 (Tex.App.-Dallas 2008, no pet.).
The determination of whether circumstances have materially and substantially changed for purposes of modifying child support is within the trial court's discretion. See Farish,921 S.W.2d at 541. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding rules or principles. In reM.M.S., 256 S.W.3d 470, 478 (Tex.App.-Dallas 2008, no pet.); Garner v. Garner, 200 S.W.3d 303, 306 (Tex.App.-Dallas 2006, *Page 531 no pet.). The trial court does not abuse its discretion if it bases its decision on conflicting evidence and some evidence supports its decision. See In re M.M.S.,256 S.W.3d at 478; see also Downer v. Aquamarine Operators, Inc.,701 S.W.2d 238, 241-42 (Tex. 1985) (fact that trial court may decide matter within its discretionary authority in different manner from appellate court in similar circumstance does not demonstrate abuse of discretion). Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error, but are relevant in assessing whether the court abused its discretion. In reJ.D.D., 242 S.W.3d 916, 920 (Tex.App.-Dallas 2008, pet. denied); Garner, 200 S.W.3d at 306.
B. Application of Law to Facts Mother contends that although Father lost his job within the time period at issue, his actual circumstances did not materially and substantially change in light of his inheritance of approximately $400,000 during that same time period. Accordingly, Mother asserts Father failed to carry his burden to meet the requisite standard of "material and substantial change." Father responds that although his "net worth has increased by virtue of his inheritance," his income has diminished materially and substantially since the time of the divorce.
We begin by addressing Mother's contention that theFarish case is analogous to this case. Farish involved a father who moved to modify his child support obligation in light of a "decline in his net resources, his remarriage, another child, and private school tuition increases." Farish, 921 S.W.2d at 541. The father's primary argument in support of his claim was the alleged necessity of the sale of most of his assets to pay his debts and child support. Id. The court in Farish noted the record showed the father had sold forty-one assets since the time the divorce decree at issue was rendered and had used most of the proceeds of approximately $3.1 million to pay debts.Id. at 544-45. However, the court concluded the father's circumstances had not materially and substantially changed because, even without considering the application of the proceeds from the sale of his assets to pay debts, "his salary and other income significantly increased" during the time period at issue. Id. at 544.
Mother argues that "like the Father in Farish, rather than suffering a downturn, Father's finances have actually improved" since the time of the divorce decree. However, inFarish, despite the depletion of substantial asset holdings to pay debts, the father's salary and other income significantly increased during the time period at issue. Seeid. The record in this case is distinguished from that inFarish because it shows Father's salary and other income decreased during the time between the divorce decree and the time the modification was sought. Between the time he was laid off and July 2005, Father used retirement funds, which were "liquidated through deferred compensation," to pay back loans and cover living expenses. Father filed a motion for modification of the September 12, 2003 divorce decree in July 2005. In late 2005 and early 2006, Father received an inheritance of approximately $400,000. Subsequently, he used approximately $60,000 of that inheritance to start a business. He testified he had no salary for about a year while waiting for the business to become profitable, and he used the inheritance to pay living expenses, child support, and some accumulated debt during that time. Once the business became profitable, Father used $150,000 of his inheritance to purchase an annuity retirement investment to replenish the retirement funds he had used to pay back loans and cover living expenses prior to *Page 532 receiving the inheritance, and he provided $1000 of the inheritance to his wife's son to help him purchase a vehicle. The remainder of the inheritance, about $75,000, was placed in a money market fund that earns approximately $38 interest per month. In February 2007, Father filed an amended motion to modify. At the time trial commenced in November 2007, Father's monthly salary was approximately $6000, a decrease of approximately $38,000 from his annual salary in 2003 at the time of the divorce decree.
Because there is some evidence in the record supporting the finding of a material and substantial change in Father's circumstances since the time of the divorce decree, we cannot conclude the trial court abused its discretion regarding its determination as to such a change. See In re M.M.S.,256 S.W.3d at 478; Labowitz v. Labowitz,542 S.W.2d 922, 925-26 (Tex.Civ.App.-Dallas 1976, no writ) (temporary fluctuation in father's income constituted material and substantial change despite allegation that father was still capable of supporting children in same general manner); cf.Clark v. Jamison, 874 S.W.2d 312, 316-17 (Tex.App.-Houston [14th Dist.] 1994, no writ) (trial court did not abuse discretion in refusing father's request for decrease in child support despite finding material and substantial change in circumstances, where evidence showed father's income may have actually increased). We decide against Mother on her fifth issue.
III. NET RESOURCES Next, we address Mother's first and second issues, in which she alleges the trial court erred as a matter of law by not including in Father's "net resources" the inheritance of approximately $400,000 Father received subsequent to the parties' divorce, the value of Father's personal use of his company's truck, and the $1000 monthly health insurance premium paid on Father's behalf by his company.
A. Standard of Review The interpretation of a statute is a legal question, and we review the trial court's construction of a statute de novo.Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433,437 (Tex. 2009); Waltenburg v. Waltenburg,270 S.W.3d 308, 312 (Tex.App.-Dallas 2008, no pet.). Our objective is to ascertain and give effect to the legislature's intent.Entergy Gulf States, Inc., 282 S.W.3d at 437;Waltenburg, 270 S.W.3d at 312. Statutes must be construed as written and legislative intent determined, if possible, from their express terms. Helena Chem. Co. v.Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). If the words of a statute are clear and unambiguous, we apply them according to their plain and common meaning. City of Rockwall v.Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). "We use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired, but otherwise, we construe the statute's words according to their plain and common meaning unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results."FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Hous.Sys., 255 S.W.3d 619, 633 (Tex. 2008) (citing TEX. GOV'T CODE ANN. § 311.011 (Vernon 2005); Univ. of Tex. Sw.Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004),superseded by statute on other grounds, TEX. GOV'T CODE ANN. § 311.034). "We presume the Legislature intended a just and reasonable result by enacting the statute." Id. (citing TEX. GOV'T CODE ANN. § 311.021(3)).
B. Applicable Law Under Texas law, child support is generally determined by calculating the child *Page 533 support obligor's monthly "net resources" and applying statutory guidelines to that amount. See TEX. FAM. CODE ANN. §§ 154.061(a), 154.062, 154.125 (Vernon Supp. 2009);see also § 154.122 (Vernon 2008) (amount of support determined by the child support guidelines is presumed to be appropriate amount of support). Texas Family Code section 154.062 defines "net resources" as follows:
Id. § 154.062(a)-(c).5§ 154.062. Net Resources
(a) The court shall calculate net resources for the purpose of determining child support liability as provided by this section.
(b) Resources include:
(1) 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
(2) interest, dividends, and royalty income;
(3) self-employment income;
(4) net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and
(5) all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.
(c) Resources do not include:
(1) return of principal or capital;
(2) accounts receivable;
(3) benefits paid in accordance with the Temporary Assistance for Needy Families program; or
(4) payments for foster care of a child.
After determining the obligor's net resources and the percentage of net resources the obligor would pay under the guidelines, the trial court then considers whether any additional factors would justify varying from the guidelines.See In re B.R.G., 48 S.W.3d 812, 818-19 (Tex.App.-El Paso 2001, no pet.). Specifically, section 154.123 provides:
§ 154.123. Additional Factors for Court to Consider
(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 *Page 534 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) 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.
C. Application of Law to Facts 1. Is an Inheritance a "Resource"?
In her first issue, Mother asserts the trial court incorrectly concluded as a matter of law that inheritances are not included in the family code's definition of "resources."6 According to Mother, inheritances fall under section 154.062(b)(5)'s classification of "all other income actually being received, including . . . gifts" because "inheritances are merely gifts received pursuant to a will." Mother contends the family code "does not differentiate between one time gifts and on-going gifts." Further, Mother asserts the use of the word "including" in section 154.062(b)(5) is especially relevant in light of the interpretation of that term as one of enlargement in the government code's general rules of code construction.See TEX. GOV'T CODE ANN. § 311.005(13) ("`Includes' and `including' are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.").
Father argues the trial court correctly concluded that an inheritance is not part of the statutory list of items that constitute resources for child support purposes. In his brief on appeal, Father states "the trial court . . . noted that had the Texas legislature intended to include inheritance as *Page 535 part of an obligor's net resources for child support purposes, it could have specifically so stated, just as it did when it defined separate property to consist, among other things, of `property acquired by the spouse during marriage by gift, devise, or descent.'" Further, Father contends "only periodic gifts, such as a monthly stipend for a college student, can be considered income for child support purposes."
No published Texas opinion has expressly reached the issue of whether the principal of a cash inheritance is part of a parent's resources for purposes of determining child support under family code section 154.062. See TEX. FAM. CODE ANN. § 154.062. While cases involving statutes of other states illustrate a variety of approaches to the issue, 7 none of those statutes is identical to the provision before us. According to Texas law, our objective in interpreting a statute is to ascertain and give effect to the legislature's intent.See Entergy Gulf States, Inc., 282 S.W.3d at 437;Waltenburg, 270 S.W.3d at 312.
Section 154.062(b)(5) provides that resources include "all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, unemployment benefits, *Page 536 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). None of these key terms (i.e., "income" and enumerated types of "income") is defined in the family code for purposes of chapter 154. But cf. id. § 8.001(1) (Vernon 2006) (defining spousal "maintenance" for purposes of chapter eight as "an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse"); id. § 159.102(5) (Vernon 2008) (defining "income" for purposes of chapter 159, the Uniform Interstate Family Support Act, to include "earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of this state"). The rules of statutory construction provide that unless a word is connected with and used with reference to a particular trade or subject matter or is used as a word of art, the word shall be given its ordinary meaning. TEX. GOV'T CODE ANN. § 312.002 (Vernon 2005);see also id. § 311.011(a) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."); id. § 311.011(b) ("Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."); FKM P'ship, Ltd.,255 S.W.3d at 633 (absent definition or technical meaning, statute's words are construed according to plain and common meaning unless contrary intention is apparent or result is absurd); cf.Guthery v. Taylor, 112 S.W.3d 715, 721 (Tex.App.-Houston [14th Dist.] 2003, no pet.) ("when construing a statutory word or phrase, a court may take into consideration the meaning of the same or similar language used elsewhere in the act or in another act of similar nature").
We have considered the definitions supplied for some terms in the family code described above and the common usage and ordinary meaning of the terms used in section 154.062(b)(5). Not surprisingly, we conclude that section lists income of assorted types and nature. Further, while several of the types of income listed could be categorized as involving regular, periodic receipts of money (e.g., retirement benefits, social security benefits, unemployment benefits, disability and workers' compensation benefits, interest income, spousal maintenance, alimony), others are likely to involve nonrecurring payments (e.g., gifts, prizes, capital gains). See TEX. FAM. CODE ANN. § 154.062(b)(5). Yet, any of the types of income listed in section 154.062(b)(5) could be periodic or nonrecurring, depending on the circumstances. See id. Additionally, while most of the types of income listed are generally likely to be derived from the capital or labor of the obligor, cf. WEBSTER'S THIRD NEW INT'L DICTIONARY 1143 (1981) (defining income as "a gain or recurrent benefit that . . . derives from capital, labor, or a combination of both"), others are not (e.g., gifts, prizes, spousal maintenance, alimony). See TEX. FAM. CODE ANN. § 154.062(b)(5). Thus, section 154.062(b)(5) indicates no intent to exclude from "resources" income involving nonrecurring payments and include only "periodic" payments, as argued by Father, or to include only sums paid to the obligor respecting his capital or labor.8 *Page 537
As correctly argued in part by Mother above, the general rules of code construction provide that "includes" and "including" are terms of enlargement and not of limitation or exclusive enumeration, and use of those terms does not create a presumption that components not expressed are excluded.See TEX. GOV'T CODE ANN. §§ 311.005, 311.005(13) (defining "includes" and "including" and providing that definitions therein apply unless statute or context requires different definition). Based on the language of section 154.062(b)(5) and the rules of statutory and code construction, we conclude the legislature's intent is that all receipts of money that are not specifically excluded by the statute (section 154.062(c)), whether nonrecurring or periodic, whether derived from the obligor's capital or labor or from that of others, must be included in the definition of "resources."9 Thus, we cannot say that a cash inheritance from a third party paid to the obligor of child support in two payments, as in the case before us, is not a "resource" under the inclusive language of section 154.062(b)(5). We conclude the language of that section creates a catch-all provision, and a cash inheritance is a "resource" pursuant to that provision.10 Accordingly, we need not address the issue raised by the parties as to whether an inheritance constitutes a "gift" pursuant to section 154.062(b)(5).
The dissent disagrees with our conclusion on this issue. We respectfully disagree with the method the dissent uses to achieve its conclusion.
First, we note a material departure by the dissent from our analysis that focused upon the interpretation of the whole of section 154.062(b)(5) to conclude the cash inheritance in this case is a resource. We believe the dissent improperly focuses primarily on the introductory phrase of that section, "all other income," when it concludes "[a]n inheritance is not commonly or legally considered income." In re P.C.S., No. 05-08-00438-CV, 320 S.W.3d at 544 (Tex.App.-Dallas Aug. 12, 2010). In support of its position that "income" is the key to interpreting section 154.062(b) and the enumerated items listed in section 154.062(b)(5) are to be considered types of income (differentiating them from an inheritance), we are cited to definitions of the term "income." Included is a definition of "gross income" from the Internal Revenue Code that excludes an "inheritance." Also included are definitions of *Page 538 "income" from the 1979 and 2009 editions of Black's LawDictionary, Merriam Webster's Collegiate Dictionary, and two "Oxford" dictionaries. See id. at 538. However, the dictionary definitions are inconsistent in that the 2009 edition of Black's Law Dictionary does not exclude "inheritance" from the definition of income.11 Also, the Internal Revenue Code actually excludes property acquired by "inheritance" as well as "gift" from the term "gross income."12 Of course, "gifts" are included within the list of items in section 154.062(b)(5), which the dissent suggests are to be considered as types of income. Then, the dissent attempts to reduce the impact of that conflict by stating the family code is not bound by the Internal Revenue Code in calculating income. In our view, the conflict inherent in those definitions creates ambiguity rather than clarity and those authorities are not persuasive of the dissent's position.
Second, the dissent improperly limits the enumerated items in section 154.062(b)(5) to fall within a "common" definition of "income" while acknowledging the term "gifts" in that section to be a term not "commonly" defined as income. The dissent determines that by inclusion in the enumerated items, "gifts" are "characterized" by the legislature as income for purposes of section 154.062(b)(5). At the same time, the dissent persists in asserting that because an inheritance is not specifically enumerated in section 154.062(b)(5), it can only be construed to be included in section 154.062(b)(5) if it is otherwise defined as income. Id. at 546-47. However, that reasoning does not follow in view of the inclusion of the term "including" preceding the enumerated items. That term is one of enlargement, not limitation. See TEX. GOV'T CODE ANN. §§ 311.005,311.005(13). Accordingly, the enumerated items are not exclusive or exhaustive.
As we clearly stated above, the items enumerated in section 154.062(b)(5) do not fall into any single category such that one could say that they are of the same nature and that other like items not listed are to be excluded. Thus, a conclusion that section 154.062(b)(5) limits itself to items commonly *Page 539 considered income (other than "gifts") does not follow because the dissent's approach has the effect of excluding the term "gifts" from consideration (because it is clearly of a different nature from the other enumerated items) and applying to the rest of the enumerated items the principle of statutory interpretation known as ejusdem generis. See State v. Fid. Deposit Co. of Md., 223 S.W.3d 309, 312 (Tex. 2007) (under principle of ejusdem generis, "when words of a general nature are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation"). Part of a statute cannot be carved out in order to fit a perceived meaning. See Tex. Dep't of Transp. v.City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004) (in discerning legislature's intent, statute must be read "as a whole and not just isolated portions"). Section 154.062(b)(5) is broader than the dissent's interpretation.
Third, the dissent would have us analyze the term "inheritance" by looking to part of section 154.062 that the legislature crafted to tell us what "[r]esources do not include."See TEX. FAM. CODE ANN. § 154.062(c). The dissent reasons that an inheritance is "more like a capital asset" that "shall not be included in resources." In re P.C.S.,320 S.W.3d at 546. Yet, while the family code excludes from "resources" a "return of principal or capital," those terms are not defined, much less identified to include an "inheritance."See TEX. FAM. CODE ANN. § 154.062(c). On the one hand, the dissent quarrels with our inclusion of a cash inheritance within section 154.062(b) as a resource because the term is not expressly enumerated, yet the dissent would characterize an "inheritance" as capital when section 154.062(c) does not broadly cast its language by using the expansive term "including" as in section 154.062(b)(5). See id. Statutory interpretation cannot be exercised in such an inconsistent manner.
Fourth, the dissent states that we should not equate an inheritance with the term "gift," as argued by Mother. In reP.C.S., 320 S.W.3d at 546-47. We plainly do nothing of the kind.
Finally, the dissent suggests that the inclusion of the cash inheritance at issue within the definition of "resources" in section 154.062 effects "policy changes" and raises questions about how to apply our interpretation. Id. at 548. The dissent says difficulties arise if an inheritance is, unlike here, noncash, or unproductive real property. Id. Additionally, the dissent is concerned that inclusion of this cash inheritance will "skew net resources so dramatically that the objective of calculating reasonable ongoing child support will be undermined." Id. However, those concerns of the dissent as to noncash or unproductive items are equally applicable to "gifts" or "prizes," or even "in-kind" compensation. See TEX. FAM. CODE ANN. § 154.062(b)(5). Further, as we have clearly noted above in footnote ten, where amounts are not received by an obligor as ongoing payments, Texas case law supports averaging. Moreover, a court cannot force an interpretation of statutory language merely to avoid interpretation dilemmas. As the Texas Supreme Court has stated:
St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503,505 (Tex. 1997) (quoting Simmons v. Arnim,110 Tex. 309, 324, 220 S.W. 66, 70 (Tex. 1920)).Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the intendment of a statute, giving full effect to all of its terms. But they must find its intent in its language, and not elsewhere. . . . They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation *Page 540 of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.
We agree with the dissent that "[t]his case involves the interplay between sections 154.062 and 154.123 of the family code." In re P.C.S., 320 S.W.3d at 544. However, we interpret those statutes to express a legislative intent that an inheritance is a "resource" pursuant to section 154.062(b)(5), and "unjust or inappropriate" circumstances that arise as a result of that characterization are to be addressed pursuant to section 154.123. See TEX. FAM. CODE ANN. §§ 154.062, 154.123. We conclude the trial court erred as a matter of law in determining that the inheritance at issue "is not included in the definition of net resources." Mother's first issue is decided in her favor.
2. Personal Use of Company Truck and Monthly Health Insurance Premium
In her second issue, Mother asserts the trial court erred as a matter of law by failing to include the value of Father's personal use of a company truck and the $1000 monthly health insurance premium paid on his behalf by his company in calculating his monthly net resources. Specifically, Mother argues the use of the truck and the $1000 insurance premium are net "resources" resulting from Father's personal service to the company. However, one of the "additional factors" to be considered under section 154.123 is "whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer. . . ." Id. § 154.123(b)(10). Inclusion of the obligor's employment benefits as part of net "resources" is in direct conflict with section 154.123(b)(10), which provides for evidence of such items to be considered in determining whether child support should vary from the presumptively "reasonable" established guidelines.Id. §§ 154.123(a)-(b), 154.122(a). Accordingly, we conclude Father's employment benefits are not part of his net resources under section 154.062(b), but rather are subject to consideration under section 154.123. We decide against Mother on her second issue.
IV. ABUSE OF DISCRETION AS TO ADDITIONAL FACTORS In her third and fourth issues, Mother asserts the trial court abused its discretion in determining the amount of child support with regard to Father's inheritance, personal use of his company's truck, health insurance premium paid by his company, and non-payment of the children's private school tuition.13 A. Standard of Review A trial court has broad discretion in setting child support payments, and we will reverse the order only if it appears from the record as a whole that the trial court abused its discretion.14 In re J.D.D., 242 S.W.3d at 919. *Page 541 B. Application of Law to Facts 1. Personal Use of Truck and Health Insurance Premium First, we address Mother's third issue with respect to the value of Father's personal use of his company's truck and the $1000 monthly health insurance premium paid on Father's behalf by his company as "additional factors" supporting departure from the child support payments established by application of the statutory child support guidelines. As stated above, one of the "additional factors" to be considered under section 154.123 is "whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer. . . ."See TEX. FAM. CODE ANN. § 154.123(b)(10). With regard to the company truck, the record shows Father testified at trial he drives a company truck for personal use as well as business use. He stated he keeps track of his personal use of the truck and estimated his personal use is "maybe 800 miles" per month. However, he testified he does not "have any idea" how much he will have to reimburse the company regarding that personal use. With respect to the insurance premium paid on behalf of Father by the company, the record shows Father testified the company pays approximately $1000 per month for medical coverage for Father, his wife, and his stepson. However, the record contains no evidence regarding what portion of that premium payment is attributable to insurance for Father.Cf. TEX. FAM. CODE ANN. § 154.069(a) (trial court cannot add any portion of net resources of obligor's spouse when calculating child support obligation).
The record does not show the dollar amount of the "value" of Father's personal use of the company truck he might have received and might retain if the company is not reimbursed, and does not contain evidence regarding what portion of the $1000 health insurance premium payment was attributable to insurance for Father. Therefore, we conclude the trial court did not abuse its discretion in not including the value of those items in its child support calculation. See Stallworth v.Stallworth, 201 S.W.3d 338, 349 (Tex.App.-Dallas 2006, no pet.) (party complaining of abuse of discretion has burden to bring forth record showing such abuse); see also TEX.R.APP. P. 44.1, 47.1 (judgment may not be reversed on appeal unless error complained of probably caused rendition of improper judgment).
2. Payment for Private School In her fourth issue, Mother contends the trial court abused its discretion when it failed to require Father to contribute to the children's private school tuition. According to Mother, the trial court is essentially forcing her to shoulder one hundred percent of private school costs that Father originally agreed to assist in paying. Father asserts that in deciding not to require him to pay private school tuition for the children, "the trial court weighed the children's needs for private school against the resources available in public school, considered the children's medical conditions and reviewed the parties' financial situations." Father contends the trial court's decision regarding payment for private school tuition was not an abuse of discretion. *Page 542
The record shows that under the parties' agreed divorce decree, Father agreed to pay half of the children's "school tuition (presumed to be special school tuition)." In his February 14, 2007 amended motion to modify the divorce decree, Father requested that his child support be reduced, "including but not limited to setting the support according to the Texas Family Code guidelines and eliminating any requirement to pay for private school tuition for the children." Mother contended in her responsive pleading in the trial court that none of Father's obligations under the agreed divorce decree should be altered because Father had failed to show that the circumstances of the children or a party affected by the order had materially and substantially changed.
At trial, the trial court heard testimony from several witnesses regarding the children's need for private school. Rosalind Funderburgh, director of Vanguard School, a private school attended by P.C.S., testified she is familiar with both P.C.S. and L.R.S. Funderburgh testified she believes both P.C.S. and L.R.S. should continue to attend private schools and should not be moved to public schools. Dr. Alexandria Doyle testified she has evaluated P.C.S. in the past and sees L.R.S. in ongoing therapy. Doyle testified P.C.S. is not capable of living independently and would be "victimized" in public school, and she did not believe L.R.S. could function in a public school. In response to questions by the trial court regarding public services that might be available to P.C.S. and L.R.S., Doyle testified "Texas Rehabilitation Commissions" might be able to provide occupational training or a "sheltered workshop" for P.C.S. Further, Doyle testified Texas Rehabilitation Commissions might pay for L.R.S. to go to community college.
Father testified he believes both P.C.S. and L.R.S. are capable of functioning in public schools. Father testified he believes L.R.S. is being challenged at the private school he attends, but P.C.S. "could be challenged a lot more." Father stated he has looked into accommodations at Plano public schools and believes P.C.S. would be able to function at a Plano public high school. Father testified he was told by the "director of special needs" at Plano Senior High School "there's really no limit to the special kinds of programs, that [the Plano public school district] can develop to fit the needs of the child." In addition, Father testified he believes P.C.S. could succeed at a community college after graduation from high school because P.C.S. took a community college class in website design in 2007 and did very well. With respect to L.R.S., Father testified he has a great work ethic and his grades at his private school are very good. L.R.S. participates in Boy Scouts and has attended a week-long Boy Scout summer camp out of state. Father testified he has not been able to have much input as to where the children go to school. He believes the children are in a "very sheltered school environment" and that they need "mainstream experiences" in order to prepare them to become part of "regular society" and be successful adults. He testified the children are capable of being left alone for hours at a time and during that time are able to prepare food for themselves and to take care of themselves.
In a February 12, 2008 letter ruling, the trial judge stated in part that Father shall be ordered to pay $400 per month in addition to the guideline amount of child support "to cover additional costs incurred by virtue of the children's special needs." Mother filed a March 6, 2008 motion to reconsider the trial court's ruling, in which she stated in part that "[b]oth children have special needs and require private *Page 543 schooling, which this Court's ruling does not appear to have taken into consideration." In the order at issue, the trial court found that both children "have special needs that would necessitate deviation from the guideline amount of support." Further, the order at issue stated that in addition to the guideline amount of child support, Father shall pay (i) reimbursement to Mother for insurance carried by Mother for the children, (ii) $400 per month "to cover additional special medical needs of the children," and (iii) "[o]ne-half of the costs of medical expenses for both children that are not reimbursed by or covered by insurance, for medical services not rendered to the children within the plan coverage."
It is not clear from the record whether the $400 per month Father was ordered to pay in addition to the guideline amount of support was intended by the trial court to address the children's special needs with respect to private school. However, as noted above, the parties' agreed divorce decree provided Father would pay half of the children's "school tuition (presumed to be special school tuition)." Father's amended motion to modify requested, in part, that the obligation to pay any of the private school tuition be eliminated. Indeed, the findings, conclusions, and orders of the trial court make no reference to any obligation to pay any part of the private school tuition. Regardless of the trial court's intention, it is well settled that the trial court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given their testimony. See Hatteberg v. Hatteberg,933 S.W.2d 522, 530 (Tex.App.-Houston [1st Dist.] 1994, no writ) (trial court could believe or disbelieve any part of testimony regarding necessity of private school for children). Here, the record contains some evidence that public schools can accommodate the children's special needs and the children would be able to function at such schools. Accordingly, we conclude the trial court did not abuse its discretion in not requiring Father to contribute to the children's private school tuition.See In re M.M.S., 256 S.W.3d at 478. We decide against Mother on her fourth issue.
V. CONCLUSION Based on the applicable standards of review and the foregoing analysis, we conclude the trial court erred by failing to include Father's $400,000 cash inheritance in calculating his net resources. Additionally, we conclude the trial court did not err by not including the value of Father's personal use of his company's truck or the health insurance premium paid on his behalf by his company in calculating such resources. Finally, we conclude the trial court did not abuse its discretion by (i) not considering the value of Father's use of the company truck or the health insurance premium paid on his behalf as factors supporting departure from the statutory child support guidelines, where the evidence did not support such consideration; (ii) not requiring Father to contribute to the children's private school tuition; or (iii) finding there had been a material and substantial change in circumstances that warranted modification of the prior order regarding child support. Mother's first issue is decided in her favor. We decide against Mother on her remaining issues, with the exception of the portion of Mother's third issue regarding Father's inheritance, which we need not consider.
We reverse the trial court's order with respect to the calculation of Father's net resources and all portions of the order based on such calculation, affirm the trial court's order in all other respects, and remand this case to the trial court for *Page 544 further proceedings consistent with this opinion.
SMITH, J., dissenting and concurring.