Affirmed in Part and Reversed and Remanded in Part and Opinion filed May 22, 

2012.

In The

Fourteenth Court of Appeals 

NO. 14-11-00164-CV

IN THE INTEREST OF A.M.P., A Child

On Appeal from the County Court at Law No. 2

Galveston County, Texas

Trial Court Cause No. 06FD2204

O P I N I O N

In this appeal by a mother from the trial court’s modification order in a suit 

affecting a parent-child relationship, we consider whether the trial court erred in 

determining the father’s resources and in calculating and reducing the father’s monthly

child-support obligations. The mother also challenges the dismissal of her claim that the 

father fraudulently induced her to enter into an agreement. We affirm the trial court’s

denial of recovery on the mother’s fraudulent-inducement claim and reverse and remand 

the remainder of the trial court’s judgment. 
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I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant/petitioner Liane Poell filed a petition to modify a prior final order in a 

suit affecting the parent-child relationship, seeking, among other things, to raise the 

monthly amount of child support for A.M.P., Poell’s minor child. Appellee/respondent 

Henry Kohl, the child’s father, filed a counter-petition seeking to reduce the amount of 

child support. He also sought a standard possession order. Kohl claimed that the 

monthly child-support payments of $586, as reflected in the prior order, were not in 

substantial compliance with the Texas Family Code and that a decrease in his obligation 

would be in the child’s best interest. 

Poell testified that in March 2010, after Kohl sought a reduction in his childsupport obligations, she agreed to proposed temporary orders that would reduce Kohl’s 

child-support obligations, believing that Kohl was unemployed. The same month, the 

trial court signed an Agreed Temporary Order, reducing Kohl’s monthly child-support 

obligation from $586 to $267 per month, effective October 2009. Later, Poell learned 

that Kohl had made a bank deposit of approximately $8,000 in March 2010, and that he 

was employed at his mother’s business. Poell testified that she would not have agreed to 

the temporary order had she known these facts at the time. Poell admitted she did not 

know the source of Kohl’s bank deposit, but presumed it constituted income. 

According to the record, at some time in the beginning of 2010, the parties 

memorialized an agreement under Texas Rule of Civil Procedure 11; the parties agreed 

that Kohl’s child-support obligations would be reduced from $586 to $267 per month

during the temporary-order phase of the proceedings. Poell asserts that she entered into 

this agreement based upon Kohl’s representation to her that he was unemployed. The 

trial court apparently rendered the Agreed Temporary Order on this basis. 

As reflected in her live pleadings, Poell alleged that Kohl had fraudulently induced 

her to enter into the Rule 11 agreement by claiming to be unemployed when Kohl 

actually had gainful employment. On this basis, Poell sought to rescind the decrease in 

child support effected by the temporary order. Poell also sought an increase in Kohl’s 
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monthly child support amount to the amount appropriate based upon the child-support 

guidelines in Texas Family Code Chapter 154; Poell asserted at trial the appropriate 

amount was $1,200.

The trial court conducted a bench trial in November 2010. Record evidence from 

the proceedings reflects that Kohl collected unemployment benefits starting in August 

2009, and ending in February 2010. The evidence also shows that, Kohl served as the 

general manager for “Heavenly Ham,” a business owned by his mother. At the time of 

trial, Kohl had worked at the business for sixteen years, at times logging sixty-five to 

eighty hours a week, though he testified that he had not worked that many hours in 

several years. Kohl claimed that he did not receive a paycheck in the year 2010 because 

the family-owned business was unsuccessful and could not afford to pay his salary. 

According to Kohl, although his mother’s business did not give him a paycheck for his 

work, Kohl’s mother had advanced him sums totaling in excess of $80,000 since 2007

(“Sums”). From the Sums, Kohl paid personal expenses, including payments that he 

claimed to be child-support payments. The record is unclear how much of these Sums 

Kohl received from the time he sought to reduce his child-support obligations. The 

nature of these advances is a disputed issue in this case.

Kohl confirmed that his name, along with his mother’s name, is listed on deeds for 

a number of pieces of real property. According to Kohl, his residence was used as 

collateral for a business loan for his mother’s business; his mother’s business makes one 

of the two mortgage payments on the home. Kohl testified that he had no equitable 

ownership interest in the remaining properties and that his mother’s or daughter’s interest 

was superior to his rights or interest in the properties. Kohl explained that his name is 

listed on various deeds along with his mother’s name in case something were to happen 

to his mother, who, at the time of trial, was seventy-seven years old and terminally ill 

with pancreatic cancer. Of all the properties, Kohl claimed to be listed as mortgagee on 

only the mortgage for his residence and not on any of the other properties. Kohl claimed 

to be a few months behind on his mortgage payments and had accumulated as much as 
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$55,000 in credit-card debt. Other evidence of Kohl’s monthly expenses was introduced 

at trial. 

In its final order, the trial court modified Kohl’s monthly child-support obligation, 

reducing it from $586 to $267. The trial court also made certain modifications regarding 

possession of and access to A.M.P., but otherwise denied all other requested relief. 

II. ISSUES PRESENTED 

On appeal, Poell asserts that the trial erred in (1) dismissing her fraudulentinducement claim, and (2) determining Kohl’s net resources and in reducing his monthly 

child-support obligations based on these calculations. 

III. DENIAL OF RELIEF AS TO FRAUD CLAIM 

Poell asserts that, based on its denial of relief as to her fraudulent-inducement 

claim, the trial court impliedly found that Kohl was unemployed. Poell argues the 

evidence is insufficient to support that implied finding. As pleaded, Poell’s fraud claim 

had the following elements: (1) Kohl made a material misrepresentation; (2) the 

representation was false; (3) when he made the representation, Kohl either knew it was 

false or made it recklessly without any knowledge of the truth and as a positive assertion; 

(4) Kohl made the representation with the intent that Poell should act upon it; (5) Poell 

acted in reliance on the representation by entering into the Rule 11 agreement; and (6) 

Poell thereby suffered injury. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 

211 n.45 (Tex. 2002). By finding against her on this claim, the trial court impliedly 

found that the trial evidence did not prove each of these elements by a preponderance of 

the evidence. On appeal, Poell argues that “a finding of unemployment was against the 

great weight of the evidence.” She has not challenged the implied findings as to each 

element of fraud, any one of which would be an independent basis for rendering 

judgment against Poell on the fraud claim. Because Poell has not challenged all 

independent bases or grounds that support the trial court’s judgment regarding her 

fraudulent-inducement claim, we affirm the trial court’s judgment to the extent it denies 
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her recovery on this claim. See Navarro v. Grant Thornton, LLP, 316 S.W.3d 715, 719–

20 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

IV. NET-RESOURCES DETERMINATION

In her remaining issues, Kohl challenges the trial court’s modification order, 

asserting the trial court erred in determining Kohl’s net resources and in calculating and 

reducing Kohl’s monthly child-support obligations. A trial court’s order setting or 

modifying child support is reviewed under an abuse-of-discretion standard. Worford v. 

Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). The test for abuse of discretion 

is whether the trial court acted arbitrarily or unreasonably, or whether it acted without 

reference to any guiding rules or principles. See id. Under the abuse-of-discretion 

standard of review, challenges to the sufficiency of the evidence are not independent 

grounds of error but are relevant factors in assessing whether the trial court abused its 

discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.—Houston [14th Dist.] 2002, no 

pet.). An abuse of discretion does not occur when the record contains some evidence of a 

substantial and probative character to support the trial court’s ruling. Id.

Poell claims the trial court erred by impliedly concluding that the sums of money 

Kohl’s mother gave him—the Sums—should not be included in the calculation of Kohl’s 

net resources because these sums were the proceeds of a loan and therefore were not 

“resources” as defined in section 154.062(b). See Tex. Fam. Code Ann. § 154.062(a),(b) 

(West Supp. 2011). Poell challenges the sufficiency of the evidence to support this 

implied finding and asserts that the trial court abused its discretion in reducing Kohl’s 

monthly child-support obligations to $267 based on the trial court’s calculations of net 

resources.

With exceptions not applicable here, the trial court may modify the prior childsupport order if:

(1) the circumstances of the child or a person affected by the order have 

materially and substantially changed since the earlier of: 

(A) the date of the order’s rendition; or 
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(B) the date of the signing of a mediated or collaborative law 

settlement agreement on which the order is based; or 

(2) it has been three years since the order was rendered or last modified and 

the monthly amount of the child support award under the order differs by 

either 20 percent or $100 from the amount that would be awarded in 

accordance with the child support guidelines. 

Tex. Fam. Code Ann. § 156.401(a) (West 2012). In determining whether a modification 

in child-support payments is appropriate, a trial court should consider the circumstances 

of the child and the parents at the time of the prior child-support order as compared to the

circumstances existing at the time of trial in the modification suit. See In re D.S., 76 

S.W.3d 512, 520 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Upon a showing of 

the requisite changed circumstances, the trial court may alter the child-support 

obligations. See id. Trial courts have broad discretion to determine and modify the 

amount of child support that a parent must pay. See id. The best interest of the child is 

the trial court’s primary focus in determining questions of child support. See Tex. Fam. 

Code Ann. § 156.402. In determining whether a modification is warranted, the trial court 

may consider the child-support guidelines. Tex. Fam. Code Ann. § 156.402(a),(b). The 

trial court also may consider “other relevant evidence in addition to the factors listed in 

the guidelines.” Id. § 156.402(b). 

The amount of a periodic child support payment established by the child support 

guidelines in effect in this state at the time of the hearing is presumed to be reasonable, 

and an order of support conforming to the guidelines is presumed to be in the best interest 

of the child. See id. § 154.122(a) (West 2012). Though the trial court is not required to 

follow the guidelines, it must make certain fact findings if the amount of child support it 

orders varies from the amount computed by applying the percentage guidelines under

Texas Family Code sections 154.125 or 154.129, as applicable. See id. § 154.130(a) 

(West 2012). Because the trial court did not make any such findings in the case under 

review, the trial court abused its discretion in modifying Kohl’s monthly child-support 

obligation if the modified amount varied from the amount computed by applying the 
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percentage guidelines under Texas Family Code section 154.125 or 154.129, as 

applicable. See Omodele v. Adams, No. 14-01-00999-CV, 2003 WL 133602, at *4–5 

(Tex. App.—Houston [14th Dist.] Jan. 16, 2003, no pet.) (mem. op.). In the case under 

review, the amount of the periodic child-support payment established by the child support 

guidelines is twenty percent of Kohl’s monthly net resources. See id. § 154.062, 154.125, 

154.129 (West 2012). Included in Kohl’s monthly net resources are his income and other 

compensation for personal services as well as gifts that Kohl receives. See Tex. Fam. 

Code Ann. § 154.062(b) (West 2012).

Poell challenges the trial court’s implied finding that the Sums were a loan from 

Kohl’s mother and asserts that the Sums should have been included as a resource in 

calculating Kohl’s monthly net resources. In his testimony, Kohl characterized the Sums

as both “an advance on his inheritance” and as a “loan.” Our first task is to determine the 

true nature of the Sums. If these sums are in the nature of a gift or if they are otherwise 

included within the term “resources,” then they should have been considered in the 

calculation of Kohl’s net resources for purposes of determining the amount of the 

periodic child-support payment established by the child-support guidelines. See Tex. 

Fam. Code Ann. § 154.062(b). Conversely, if the Sums are proceeds from a loan, then 

the trial court did not err by impliedly excluding the Sums from Kohl’s net resources.

Kohl testified at trial that the Sums are a loan from his mother and that he does 

not pay income taxes on the Sums. Kohl stated that, after his mother dies, the Sums are 

going to be repaid by deducting the total of the Sums plus six percent interest from any 

inheritance that Kohl receives under his mother’s will. Though, at one point in his 

testimony, Kohl stated as a conclusion that the arrangement was a loan, he also stated that 

it was to be repaid as a deduction from his inheritance after his mother dies and that his 

mother was giving him “an advance on [his] inheritance.” Kohl testified that this 

arrangement was set forth in his mother’s will. The trial evidence did not contain any 

will or any written agreement between Kohl and his mother regarding any alleged loan or 

any obligation of Kohl to repay the Sums. The parties have not cited and research has not 
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revealed any Texas cases addressing whether an advance on an inheritance is a 

“resource” within the meaning of Texas Family Code section 154.062(b). 

For there to be a loan, Kohl must have an absolute duty to repay the Sums. See 

Schepps Grocery Co. v. Burroughs Corp., 635 S.W.2d 606, 610 (Tex. App.—Houston 

[14th Dist.] 1982, no writ) (holding that, to find a loan exists, there must be an absolute 

duty of the borrower to repay the principal). There is no written evidence of any 

obligation on Kohl’s part to repay the Sums. Kohl did not testify that he has an 

obligation to repay the Sums to his mother other than by a deduction from his inheritance 

under his mother’s will. When asked how the Sums have to be repaid, Kohl testified that 

“[i]t’s going to be repaid when she’s deceased . . . [t]hrough her will and properties.” 

When asked to clarify this obligation to repay the Sums, Kohl testified that the Sums, 

plus interest, will be deducted from his inheritance under his mother’s will. Kohl agreed 

that the Sums were “an advance on his inheritance.” 

A person may enter into a binding contract to make a certain will or devise or not 

to revoke a will or devise by either a binding and enforceable written contract or by the 

provisions of a will stating that such a contract exists and that the material provisions of 

the contract.1 See Tex. Prob. Code Ann. § 59A (West 2012); Ray v. McMaster, 296 

S.W.3d 344, 347–48 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The trial 

evidence did not contain any will or any written agreement between Kohl and his mother 

regarding her will. In any event, Kohl does not assert that his mother is contractually 

obligated to make Kohl a beneficiary in her will or not to change her will so that he is no 

longer a beneficiary. On the contrary, Kohl testified that his mother is free to change her 

will at any time. The evidence at trial showed that Kohl has no right to be designated as a 

beneficiary or to receive any benefit under his mother’s will. See Tex. Prob. Code Ann. § 

59A; Ray, 296 S.W.3d at 347–48. Kohl’s mother may change her will so that Kohl is no 

 

1 Kohl and his mother reside in South Carolina. We presume that South Carolina law in this regard is the 

same as Texas law because no party has established that South Carolina law differs from Texas law on 

this issue. See Excess Underwriters at Lloyd’s, London v. Frank’s Casing Crew & Rental Tools, Inc., 246 

S.W.3d 42, 53 (Tex. 2008).
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longer a beneficiary, or, though named a beneficiary, Kohl may never be entitled to any 

amounts under the will.2 In either case, there would be no potential inheritance from 

which a deduction may be made. Even if the foregoing contingencies do not occur, under 

this arrangement, Kohl’s mother is effectively deciding to give Kohl less under her will 

than she otherwise would have, based upon Kohl’s prior receipt of the Sums. No will is 

in evidence. We presume for the sake of argument that, in calculating the amount that 

Kohl is to receive under Kohl’s mother’s will, there is a deduction based upon Kohl’s 

receipt of the Sums. Even under this presumption, given that Kohl has no legal right to 

receive any amount under his mother’s will, any such provision in the will does not 

constitute a payment by Kohl to his mother or her estate; rather, such a provision simply 

expresses what Kohl’s mother has decided Kohl should receive under her will. See Tex. 

Prob. Code Ann. § 59A; Ray, 296 S.W.3d at 347–48. 

In In re P.C.S., the Fifth Court of Appeals in Dallas addressed a related issue. 

See 320 S.W.3d 525 (Tex. App.—Dallas 2010, pet. denied). In that case, the court 

considered whether a cash inheritance received by the father constituted a “net resource” 

to be considered when determining whether to modify the father’s child-support 

obligation. See id. at 534–40. After analyzing the statute and the approaches taken in 

various other jurisdictions, the P.C.S. court held that “a cash inheritance is a ‘resource’ 

pursuant to that provision.” Id. at 537. This case provides additional support for the 

conclusion that an advance on an inheritance is a “resource” under section 154.062(b). 

See id. at 534–40.

Kohl relies upon the opinion in Woodall v. Woodall. See 837 S.W.2d 856, 858–59 

(Tex. App.—Houston [14th Dist.] 1992, no writ), disapproved of by, Iliff v. Iliff, 339 

S.W.3d 74, 78–81, 83 & n.8 (Tex. 2011). The main issue in that case was whether the 

trial court abused its discretion in decreasing the father’s monthly child-support 

obligation given the reason for the substantial decrease in the father’s monthly income—

the father voluntarily chose to forego receiving interest payments on a loan he had made 

to his own business. See id. at 858–59. The Woodall court concluded that, before the 

 

2

For example, Kohl may be a residual beneficiary and there may be no residue after all debts are paid.
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trial court could ignore the father’s reduction in income, there had to be evidence that the 

father intentionally reduced his income for the purpose of obtaining a decrease in his 

child-support obligation. See id. at 858. Because there was no evidence in Woodall of an 

intent by the father to obtain a decrease in his child-support obligation, the court 

concluded that the trial court did not err in modifying the father’s child-support 

obligation based upon the decrease in the father’s income. See id. In Iliff, the Supreme 

Court of Texas expressly disapproved of this part of Woodall, holding that, under the 

plain meaning of the statute, there is no requirement of proof that the child-support 

obligor intended to obtain a decrease in his child-support obligation. See Iliff, 339 

S.W.3d at 78–81, 83 & n.8. The Woodall court also concluded that, under the plain 

language of former section 14.053(b) of the Family Code, gifts were excluded from the 

definition of “net resources.” See Woodall, 837 S.W.2d at 858. Research does not reveal 

any other case in which a court reached this conclusion about that statute. Apparently, 

the Woodall court’s analysis of the statute was based upon a clause that, under the court’s 

construction, excluded certain items from the definition of “net resources.” See Act of 

May 22, 1991, 72nd Leg., R.S., ch. 825, § 1, 1991 Tex. Gen. Laws 2856, 2857 (“but not 

including return of principal or capital, and/or accounts receivable regardless of the 

source, gifts and prizes . . . “). Presuming for the sake of argument that the Woodall court 

correctly construed former section 14.053(b) of the Family Code, that statute is no longer 

in effect, and section 154.062 does not contain this clause. See Tex. Fam. Code Ann. § 

154.062(b). Under the plain meaning of section 154.062, gifts are included in the 

calculation of net resources. See id. §154.062 (a),(b). Because the current statute is 

materially different from the former statute at issue in Woodall, the Woodall court’s 

holding regarding gifts is not applicable or binding in this case. We conclude that the 

Woodall case is not on point in the analysis of this issue.

Considering the evidence in the light most favorable to the finding, indulging 

every reasonable inference that would support it, crediting favorable evidence if a 

reasonable factfinder could, and disregarding contrary evidence unless a reasonable 
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factfinder could not, the trial evidence would not enable reasonable and fair-minded 

people to find that Kohl has an absolute duty to repay the Sums. See City of Keller v. 

Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005). The evidence is legally insufficient to 

support the trial court’s implied finding that the Sums are a loan or that the Sums are not 

Kohl’s resources within the meaning of Texas Family Code section 154.062(b). 

Therefore, the trial court abused its discretion to the extent it excluded the Sums from its 

calculation of Kohl’s net resources for purposes of determining the amount of the 

periodic child-support payment established by the child-support guidelines. See Tex. 

Fam. Code Ann. § 154.062(b). If the Sums are included in this calculation, then the 

reduced monthly child-support obligation of $267 ordered by the trial court varies from 

the amount computed by applying the percentage guidelines under Texas Family Code 

section 154.125 or 154.129. See Tex. Fam. Code Ann. § 154.125, 154.129. Accordingly, 

the trial court abused its discretion in reducing Kohl’s monthly child-support obligation 

from $586 to $267. See Omodele, 2003 WL 133602, at *4–5. 

V. CONCLUSION

Poell has not challenged all independent grounds that support the trial court’s 

judgment regarding her fraudulent-inducement claim. Accordingly, we affirm the trial 

court’s judgment to the extent it denies Poell recovery on that claim. The evidence is 

legally insufficient to support the trial court’s implied finding that the Sums are a loan or 

that the Sums are not Kohl’s resources within the meaning of Texas Family Code section 

154.062(b). Therefore, the trial court abused its discretion to the extent it excluded the 

Sums from its calculation of Kohl’s net resources for purposes of determining the amount 

of the periodic child-support payment established by the child-support guidelines. If the 

Sums are included in this calculation, then the reduced monthly child-support obligation

of $267 ordered by the trial court varies from the amount computed by applying the 

percentage guidelines under Texas Family Code section 154.125 or 154.129. The trial 

court abused its discretion in reducing Kohl’s monthly child-support obligation from 

$586 to $267. We therefore reverse the portions of the trial court’s judgment dealing 
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with modification of child support and remand for further proceedings consistent with 

this opinion.

/s/ Kem Thompson Frost

Justice

Panel consists of Justices Frost, Seymore, and Jamison.