in the Interest of R.W.

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-05-014 CV ____________________ IN THE INTEREST OF R.W. On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 04-08-06357-CV MEMORANDUM OPINION This is an appeal from an order of modification of appellant Kenneth Wilgers, Sr.'s child support obligation. The trial court found that Wilgers had net resources of more than $6,000 monthly and ordered a monthly child support payment of $1,000. See Tex. Fam. Code Ann. § 154.126 (Vernon 2002). In his sole issue, Wilgers argues that the trial court abused its discretion in ordering child support in excess of the statutory guidelines because there was no evidence either that his net resources exceeded $6,000 per month or that the proven needs of the child exceeded the presumptive amount of child support. We hold that the trial court abused its discretion, and we reverse the modification order and remand to the trial court for further proceedings. On September 18, 2003, the Attorney General filed a motion to modify child support and on October 7, 2004, the trial court held a hearing on the motion. At the hearing, both parties agreed that Wilgers had at least $6,000 in monthly net resources, Wilgers had a duty to support four other children, and 13.6% was the applicable presumptive percentage guideline. Tammy Russell, R.W.'s mother, testified for the Attorney General. Russell testified that R.W. participates in little league sports, which require fees of $150 to $170 every two or three months. Russell also explained that R.W. wanted to attend summer camp at a cost of $170 per week, but did not do so. Other expenses for R.W. included the $20 per week Russell provides him for snacks, $300 a year for school clothes, $50 to $54 per month for medication, $60 to $126 every four months for dental visits, and an occasional $20 babysitter's fee. The trial court found that: (1) Wilgers's monthly net resources were $7,352.94; (2) the percentage to be applied to Wilgers's net resources was 13.6%; (3) if the percentage guidelines were applied to the first $6,000 of Wilgers's monthly net resources, the amount of child support would be $1,000 per month; (4) "there are reasonable needs of the child that justify current child support beyond the child support guideline presumption"; and (5) Wilgers had one child before the court and four children who were not before the court. Wilgers argues that the presumptive child support award of $1,000 per month was a mathematical error and the proper award should be $816 per month. He further argues that there was no evidence that the total proven needs of the child exceeded the presumptive guideline amount of child support. Alternatively, Wilgers argues that there is no evidence to support the trial court's finding that his net resources are $7,352.94 per month. Because we find the total proven needs of the child do not exceed the presumptive amount of child support based on the first $6,000 of Wilgers's monthly net resources, we need not reach nor do we make any finding of Wilgers's total monthly net resources. "A court's child support order will not be disturbed on appeal unless the complaining party shows that the order constituted a clear abuse of the court's discretion." Farish v. Farish, 921 S.W.2d 538, 541 (Tex. App.--Beaumont 1996, no writ) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)). Once the court determines a material and substantial change has occurred, the extent of the alteration of the amount of child support also lies within the court's discretion. Id. The test for abuse of discretion is whether the trial court acted arbitrarily or unreasonably, without reference to any guiding rules or principles. Royer v. Royer, 98 S.W.3d 284, 285 (Tex. App.--Beaumont 2003, no pet.). A trial court abuses its discretion when it fails to analyze or apply the law to the facts correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). The Family Code provides that when the obligor's net resources exceed $6,000 per month, the court is to apply the presumptive percentage guidelines to the first $6,000. Tex. Fam. Code Ann. § 154.126(a) (Vernon 2002). The presumptive percentage guideline applied to the net resources of an obligor with one child before the court and four other children for whom the obligor has a duty to support is 13.6%. See Tex. Fam. Code Ann. §§ 154.128, 154.129 (Vernon 2002). Applying the presumptive percentage guideline to the first $6,000 of Wilgers's monthly net resources, we find the proper presumptive award of child support to be $816. See Tex. Fam. Code Ann. §§ 154.126(b), 154.128, 154.129 (Vernon 2002). The trial court "may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child." Tex. Fam. Code Ann. § 154.126(a) (Vernon 2002). If the court orders more than the presumptive award, section (b) requires that the court first determine the proven needs of the child. See Tex. Fam. Code Ann. § 154.126(b) (Vernon 2002). If the needs of the child exceed the presumptive amount, the court must subtract the presumptive amount from those needs. See id. The court must then allocate between the parties the responsibility to meet the additional needs of the child, depending on the circumstances of the parties. See id. "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." Id. The Texas Supreme Court has interpreted this section of the Family Code to provide that the "needs of the child" include more than "bare necessities of life" and courts must follow the paramount guiding principle of "the best interest of the child" in determining the proper award. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n. 3 (Tex. 1993). Because the trial court awarded $1,000 in child support, which is greater than the presumptive amount of $816, the court was required to find that the proven needs of the child exceeded the presumptive amount. See Tex. Fam. Code Ann. § 154.126(b) (Vernon 2002). The only evidence of the needs of the child, as provided by Russell's testimony, included approximately: (1) $85 per month for sports activities fees; (2) $113 for summer camp fees for two months; (3) $80 per month for weekly snacks; (4) $25 per month for school clothes; (5) $31.50 per month for dental visits; and (6) $54 per month for medication. Russell's testimony regarding the $20 babysitter's fee will not be considered because Russell did not specify how often the fee arises. Therefore, the total proven needs of the child, excluding the babysitter's fee, totaled only approximately $388.50. There was no evidence introduced concerning the ordinary and recurring monthly living expenses allocated to R.W. As appellee concedes, the evidence does not show that the child's proven total needs ($388.50) exceed the presumptive guideline amount of child support ($816). Based on the record in this case, the trial court abused its discretion by ordering monthly child support payments in excess of the presumptive amount pursuant to the standard child support guidelines. See id. at §154.126(b). We sustain Wilgers's issue. We reverse the order of modification of support and remand to the trial court for further proceedings consistent with this opinion. REVERSED AND REMANDED. __________________________ CHARLES KREGER Justice Submitted September 13, 2005 Opinion Delivered March 9, 2006 Before Kreger, Gaultney and Horton, JJ.