### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00252- CV

Ke nneth Koenig, Appellan t

v. Deborah Lynn DeBer ry, Appellee

F ROM TH E DISTRI CT COURT O F RUNNELS COUNTY , 119 TH JUDICI AL DISTRICT

NO. 14,3 77, H ONO RAB LE B EN WO ODW ARD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Kenne th Koenig appea ls from a district court order m o d ify ing his child-support obliga tions under the divorce decr ee that had ended his marria g e to appellee Debor ah L y nn DeB err

y . The order i n cr ea sed Koenig ’s child-support obliga tions from $500.00 per month to $842.59
per month. I n two issues on appea l, Koenig , who is now incar cer ated, asser ts that the district court abused its discretion in incre asing his child-support obliga tion beca use there is insufficient evidenc e
to support the incre ase and that the court’s deter mination of his ne t monthly resour ces err oneously considere d “community

proper ty retire ment funds.” We will aff irm the order

.

BACK GR OUND
I n 2003, Koenig and Debor ah L y nn DeB err

y wer e divorce d in Williamson County

. There wer e two childre n of the mar riag e, born in 1995 a

nd 1996. The decre e obli g ated Koenig topay DeB err y child support in the amount of $500.00 p er m o n t h an d to provide medical insurance for the c hildren.

I n Fe bruar

y 2008, Koenig was arr ested for the felony offe nse of drivi n g wh i le intox icated. That same month, DeB err y filed a petition in Wil liamson County to modify the pare ntchild rela tionship and incre ase the amount of Koenig ’s monthly child-support pay ment obliga tion. Wit h her petition, DeB err y moved to transfe r the p ro ce eding to Runnels County , wher e she had moved with the childre n in the meantime. The Wil liamson County trial court g rante d the transf er motion. On April 25, Koenig filed a counter -petition seeking a reduc tion in child support, citing incre ased trave l expenses he had been in curring “bec ause of [DeBe rry ] moving the children
250 miles awa

y from [Koenig’ s] residenc e.” Koenig also reque sted that the district court restric t the children’ s residenc e to a 250- mile radius from Koe nig’ s residenc e.

Whil e the modification petition and co u n t er- petition wer e pending , Koenig was

con victed of driving while i ntox icated and s entenc ed to four y ear s’ i mprisonment. The judgment of conviction wa s re n d ered on Aug ust 12, 2008. On September 12 of that y ear , Koenig filed

a petition to suspend his child-support and m ed i ca l i n s u ranc e obliga tions. The petition alleg ed that Koenig was u n ab l e t o fulfill these obliga tions beca use he was now serving his four- y ear prison sentenc e.

A hear ing on the modification petitions was held on November 6, 200 8

. Ko enig
appea red throug h counsel thoug h not in person. At the beg inning of the hear ing, the district court took judicial notice of Koenig ’s j udg ment of conviction. Koenig then i nt ro d u ce d i n t o evidenc e a
copy of a chec k, dated Aug ust 6, 2008, in the amount of $34,391.59, draw n from TransA merica L ife

2I nsuranc e Company and made pay able to Koenig

. I t is undisputed that the chec k was a withdrawa l

from Koe n i g’s 401(k) retire ment plan with his employ er, Austin Telco Fe dera l Credit Union. 1 Koenig rested w ithout presenting additional evidenc e. 2

De Berry then prese nted evidenc e. She testified that she was seeking an i n cr ea s e in child support beca

use Koenig ’s salary had incre ased following t h ei r 2 0 0 3 divorce

. DeB err y introd u ce d i n t o ev i d ence a copy of the 2007 joint tax return of Koenig and his curr ent wife. The
return ref lected that the couple’ s adjusted g ross income was $78,402.00. DeBer ry t es t ified that Koenig and his curr ent wife wer e both employ ed during 2007 and that they do not have any children toge ther. Also admitted into evidenc e was Koenig ’s 2007 W-2 and Earning s Sum m ar y , which showed that Koenig ’s g ross pay from his empl o y er fo r that y ear was $56,501.71 and that he had contributed $2,825.10 that y ear to his 401(k) plan. Additionally , DeB err y introduced interrog atory response s from Koenig in which he repr esente d that his monthl y g ross income from his employ er w as $4,275.00 per month.
DeB err y then testified about her financ ial circ umstances. S h e explained that she is employ ed by the City of Ba llinger in its wa ter billing depar tment. Acc ording to DeB err y , her
gro s s monthly income is $1,600 per month, and approximately $400.00 per month is deducte d

The chec k stub indicates that the g ross withdrawa l amount was $42,653.61. $75.00 in fee s 1 and $8, 1 87.02 in fede ral taxes wer e deducte d from that amount, y ielding a net pay ment of $34,391.59. Koenig did attempt to introduce a “bre akdown sheet” that purported to de monstrate that 2 Koenig ’s curr ent wife (he had rema rried since his div o rc e fr o m DeB err y ) had spent most of the retire ment money . Howeve r, DeB err y objected to this evidenc e on the g round that it ha d not be en shown to her prior to the hearing

. The dist rict court excluded thi s evidence, and Koenig does not complain of this ruling on appea l. 3from that amount so that her two children can be included on her health insurance policy

. DeB err y testified that her “take -home pay ” is $339.00 ever y two wee ks or approximately $700.00 per month. Also admitted into evidence was a second set of interrog atories in which Koenig was asked t o list “any and all stock options or re tirement, pension, profit-shar ing, employ ee stock

owner ship, Keog h, or individual retire ment plans in which y ou claim an interest, and the

curr ent balanc es of ea ch p l an or stock interest.” The following answe r was provided: “On or about September 27, 2008, Respondent cashe d in his I R A/ re t i reme nt acc ount with
Transa merica Retirement Service s to pay bills and expenses bef o re h e was incar cer ated in the Texas Depar

tment of Correc tions and to leave some extra money to car e for

his wife and c hildren during his incarc era tion.”

The district court also admitted into evidenc e aff idavits refl ec ting DeB err y ’s calc ulations of the amount of c hild support she believed K oenig owed ba sed on her application of the family code’ s tax tables and child-support g uidelines to his employ ment income and retire ment 3
wi t h d ra wa l. Koenig objected to DeB err y using the retire ment withdrawa l in her calc ulations on the g round that the retire ment funds, in his view, repr ese n t ed community proper ty of him and his curr ent wife which, there fore , sho u l d n o t b e included in the amount owed. The district court

overr uled this objection.
On cross-e x amination, DeB err y testified that during Aug ust, September, and October 2008, afte r Koenig had been convicted and beg an serving his prison term, she had continued

See Tex. Fa

m. Code Ann. §§ 154.061 (p ro v i d i n g t ax char ts for computing net 3 monthly income), .125 (providing s t at u t o ry g uidelines for computing child support based on obligor ’s monthly

net re source s and number of children be ing suppor

ted) (West 2008). 4rec eiving child support chec ks in the amount of $500.00 per month. On redire ct, DeB err y testified that Koenig had told her that the October child support pay ment was coming out of an outstanding
pay roll chec k that Koenig had bee n owed by his employ er pr ior to his conviction. Aft e r D e B e r

r y ’ s testimony , the parties provided closing arg uments. The district court then took the matter under advisement, and the hear ing conclude d. On November 18, 2008, t he district court sent the pa

rties copies of

the following finding s:

The Motion to I ncre ase Child Support was serve d on Fa ther on F ebrua ry 28, 2008; Fa t h er is capa

ble of ear ning $4,275/month g ross salary ; for 2 children before t h e court, the child support g uidelines establish child support at $842.59/month; Fa ther’s incar cer ation is not an excuse [not ] to pay child support; Fa ther withdrew $34,391.59 fr o m a retire ment acc ount which is a source for pay ing child support whi l e h e i s incar cer ated; and there is not sufficie nt evidenc e that Fa ther does not have the resour ces to pa

y child support.

Ba sed on the above finding s, the district court order ed that Koen ig’ s child support obliga tion be incre ased to the amount of $842.59 per month, retroa ctive to Marc h 1, 2008. Appar ently taking into

acc ount the $500.00 per month pay ments Koe n i g h ad already made betwee n Marc h 1 and the hear ing, the dist ri ct co u rt o rder ed that Koenig owed DeB err y a total amount of $2,739.12 in
retr o ac t i ve child support for the period between March 1 throug h October 1, 2008, which Koenig

was order ed to pay at the rate of $100.00 per month beg inning Dec ember 1, 2008. The district court further order ed Koenig to reimburse DeB err y for the children’ s health ins uranc e i n t h e amount of $400.00 per month, ag ain beg inning on Dec ember 1, and to pay 50 perc ent of any uninsured medical, dental, or ey e-c are expenses incurre d by the children. Finally , the di strict court awarded DeBe rry $2,000 in attorney ’s fe es.

5S ubsequently , Koenig filed a motion to rec onsider. Following a hear ing, the

district court over

ruled the motion. This appea l followed.

STANDARD AN D SCOP E OF REVIEW When revie wing a modification of a child-support order , we are mindful that the best interest of the children should be the trial court’s primary considera tion. See Tex. Fam. Code Ann. § 156.402(b) (West 2008); Hollifield v. Hollifield , 925 S.W .2d 153, 155 (Tex. App.—Austin 1996,

no writ). Trial courts have wide discretion in deter mining the best interest of the children. Gillespie

v. Gillespie , 644 S.W .2d 449, 4 5 1 (T ex . 1982); Hollifield , 925 S.W .2d at 155. There fore , a trial court’ s order

modify ing c hild support will not be dis turbed on appea l unless the complaining party can show a clea

r abuse of discretion. See W orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990 ); In re J.A.J

. , 283 S.W .3d 495, 497 (Tex. App.—B eaumont 2009, no pet.); Gonzalez

v. Tippit , 167 S.W .3d 536, 544 (Tex. App.—Austin 2005, no pet.). “The test for abuse of discretion is whether the trial court acte d without ref ere nce to any g uiding rules or principles; in other words, whether the act was a

rbitrar y or unre asonable .” W

orford , 801 S.W .2d at 109. “The mere fac t tha t

a trial judge may decide a matter within his discretionar y authori t y in a differ ent manner than an appellate judge in a simil ar ci rc u m stance does not demonstrate that an abuse of discretion has

occur red.” Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 242 (Tex. 1985). Under the abuse of discretion standard here , leg al and fac tual sufficie ncy are not independe nt g rounds of err or, but are rele vant fac tors in assessing whether the trial co u rt abused its discretion. Doyle v. Doyle , 955 S.W .2d 478, 479 (Tex. App.—Austin 1997, no pet.). I n making th at d etermination, we view the evidenc e in the light most favor able to the trial court’s decision and indulge ever y leg al

6presumption in favor of the decision. In re J.D.D. , 242 S.W .3d 916, 920 (Tex. App.—Dallas 2008,

pet. denied) ; Tucker v. Tucker , 908 S.W .2d 530, 532 (Tex. App.—San Antonio 1995, writ denied)

. As long as some evidenc e of a substantive and probative char acte r exis ts to support the trial court’s order , we will not substitut e our judgme n t fo r t h at o f the trial court. See Echols v. Olivarez , 85 S.W .3d 475, 477 (Tex. App.—Austin 2002, no pet.).

ANALYSIS Koenig arg ues that the district court abused its disc re t i o n in incre asing his child support for two rea sons. I n his f irst issue, Koenig asser

ts tha t be cause he is incarc era ted and

no longe r employ ed, there was insufficient evidenc e to support the district court’s fi nding that he

was capa ble of ear

ning $4,275.00 per month and, t h er ef o re, insufficient evidenc e to support the incre ase in his child-support obliga tion. I n his second issue, Koenig re- urg es the arg ument that, beca use his re t i re ment acc ount was community proper ty of him and his curr ent wife, the district court should not have consider e d f u n d s w it h d r a w n f r o m that acc ount in deter

mining Koenig ’s child-support oblig ations. 4

We beg in with Koenig ’s second issue. Koenig relies on the family code’ s prohibition
ag ainst adding “any portion of the net resour ces of a spouse to the n et re s o u rc es of an obligor or obl ige e in order to calc ulate the a mount of child support to be ordered.” Tex. Fam. Code Ann.

Koenig does not challeng e on appea l the portions of the district court’s o rd er requiring 4 Koenig to reimburse DeB err y for health insurance , requiring him to co n tribute to the children’ s uninsured medica l expenses, or awa rding attorney ’s fe es to DeB err y . 7§ 154

. 0 6 9 (a) (West 2008). I n Koenig ’s view, beca use the funds in his retire ment acc ount wer e 5
the communi ty proper

ty of hi m and his curr ent s pouse, t hey wer e “net resour ces of [t hat] spouse” under section 154.069(a) that could not be considere d in calc ulating the amount of child supp o rt he owe s DeB err

y . We disag ree . “Section 154.069 is a leg islative endea v o r ‘t o desig n a neutra l scheme that would be unaff ecte d by the rema

rriag e of the child support obligor , either for the purpose of incre asing or decr easing ch i l d s u p port.’” In re J.C.K. , 143 S.W .3d 131, 136 (Tex. App.—Waco 2004, no pet.) (quoting Starck v. Nelson , 8 7 8 S

. W

. 2d 302, 306 (Tex. App.—Corpus Christi 1994, no writ)). I n other words, even though income g ener ated by a spouse’s separ ate proper ty is community proper

ty ,

no portion of that income should be included in calc ulating a child support obligor ’s net resour ces. In re Knott , 118 S.W .3d 899, 904 (Tex. App.—Texarkana 2003, no pet.). Howeve r, that is not what happene d here

. The retire ment funds at issue in this case wer e not g ener ated by the separ ate proper ty of Koe nig’ s spouse. Rather, a s DeB err y observe s, the evidenc e shows that the r etireme nt acc ount

was part of Koenig ’s employ ment benef

its, he contributed to the ac co u n t direc tly from his monthly pay chec k, and the chec k withdrawing funds from the acc ount w as made pay able solely to Koenig

. There fore , even though the retire ment funds wer e presumptively the community proper ty

o f Ko enig and his curr ent spouse, the district court would not have abused its discretion i n 6

The statute also provides that the court “may not subtract the needs of a spouse, or of 5 a dep en d en t o f a spouse, from the net resource s of t he obli g or or oblige e.” Tex. Fam. Code Ann. § 154.069(b) ( West 2008). See Tex. Fam. Code Ann. §§ 3.002 (“Community proper ty consists of the proper

ty , other 6 than separ ate proper

ty , acquir ed by either s pouse during marria g e.”) , .003 (“Prope rty possessed by either s p o u s e during or on dissoluti on of marria g e is presumed to be community proper ty .”) (West 2006). 8finding that the retire ment funds were s u b ject to Koenig ’s sole manag ement, control, and dispositi on. Acc ording ly , the district court could consider the funds in its determ i n at i o n of Koenig ’s child support obliga tion. See Tex. Fam. Code Ann. § 3.202(c) (W es t 2 0 0 6 ) (“The community proper

ty subject to a spouse’s sole or joint manag ement, control, and dispositi on is subject to the liabiliti es incurre d by the spouse befor e or during marria g e.”) ; In re A.D. , 73 S.W .3d 244, 248 (Tex. 2002) (cha rac terizing child support as “a previously adjudicate d liability ” of obligor );

see also In r e D.T. , No. 12-05-00420- CV, 2007 Tex. App. L EXI S 9968, at *14-16 (Tex. App.—Ty ler Dec

. 21, 2007, no pet.) (explaining that chil d support lien attache d to all of obligor ’s community proper ty , including his r etireme nt pla n, unless obligor or his spouse satisfied burden to prove that community prope rt y wa s subject to spouse’s sole manag ement, control, and dispositi on). We overr

ule Koenig ’s sec ond issue.
Our disposit i o n o f Koenig’s second issue also bear s upon his first, in which he complains that the district court abused its discretion in setting his monthly child-support obliga tion
at $842.59 per month beca use there is insufficient evidenc e to support its finding that he is capa ble of earn i n g $4,275.00 per month. The district court hear d evidenc e that during the y ear prior
to Koenig ’s conviction, Koenig ’s g ross pay from his emplo y er wa s $ 5 6,501.71, and his net monthly income was $4,275.00. Ba sed on that income, the amount of child support the district court order ed, $842.59 per month, was consistent with the amount of support established by the statutory
g uidelines. See Tex. Fam. Code Ann. §§ 154.061, .1 2 5

. T h u s , this amount is presumed to be

rea sonable and in the best interest of the children. See id

. § 154.122 (West 2008). Although Koenig is no longe r ear

ning this income, the evidenc e was sufficie nt to enable the district court to find that

9Koenig nonetheless had resour ces available to satisfy this obliga tion. I n deter mining child-support liability , the district court is to consider the “net resour ces” of the obligor , and that includes not only
wag e and salary income, but “all other income actua lly being rec eived, incl u d i n g . . . retire ment b en ef its.” See Tex. Fam. Code Ann. § 154.062(a) , (b)( 5) (West 2008). The district co u rt t h u s
proper ly consi d ered evidenc e that Koenig had rec ently rec eived $34,391.59 in income from cashing out his retire ment acc oun t i n d et er mining his monthly child-support obl iga tion. We note that dividing this total amount by the forty -eight m o n ths of his prison term y ields approximately $716.49 for e ach month fr om this source alone

.

The evidenc e wa s al s o s ufficie nt to enable the district court to find that Koenig ’s income he had ear

ned from his past employ ment has not been depleted. See Rey es v. Rey es , 946 S.W .2d 627, 630 (Tex. App.—Waco 1997, no writ) (explaining that b urden of proof is on obligor to prese nt evidenc e of inability to pay child support). To the contra ry , DeB err

y provided evidenc e from which the district court could have rea sonably inferr ed that the $500.00 child-support
pay men t s Ko enig continued to pay afte r his incar cer ation came from his past income. DeB err y testified that Koe nig had told her that the October child-support pay ment was coming out of an outstanding pay

roll chec k that he was still owed from his employ er. Mor eover , even a ssuming that Koenig cannot curr ently aff ord to make child-support pay ments, the district court’s assessment makes it possible for DeBer ry t o collect child-support arr ear ag es if Koenig ’s financ ial condition improves in the future. See In re M.M. , 980 S.W .2d 699, 701 (Tex. App.—San Antonio 19 9 8, no pet.).

10The fac t that Koenig is curr ently incar cer at ed is not dispositi ve. This Court

and others have aff

irmed trial court order s requiring incar cer ated obligor s to pay child support. See,
e.g. , Hollifield , 925 S.W .2 d at 156-57; M.M. , 980 S.W .2d at 701; Rey es , 946 S.W .2d at 630;

see also Slaughter v. Slaughter , No. 13-99-00497- CV, 2001 Tex. App

. L EXI S 2783, at *6-9 (Tex. App.—Corpus Chris t i Ap r. 26, 2001, pet. denied) ; In re Vespestad , No. 07-99-00281- CV,
2000 Tex. App. L EXI S 2329, at *3-6 (Tex. App.—Amar illo Mar. 31, 2000, no pet.). This is beca use there is no leg al presumption that an in m at e h as no assets. In re A.P. , 46 S.W .3d 347, 350 (Tex. App.—Corpus Christi 2001, no pet.). Many people enter prison wit h as s et s fr om past employ ment, while other inmates ear n income during their incar cer ation. See M. M. , 980 S.W .2d
at 701. “I n the absenc e of proof from an incar cer ated person that he or she does not have such

resour ces, it would not be in the best interest of his children to excuse that per son from support obliga tio n s . ” Id

. Koenig provided no such proof, and the evidenc e was sufficie nt to support the district court’s c ontrary

finding s. On this rec ord, viewing the evidenc e in the light most favor able to the district court’s decision, we cannot conclude that the distric t co u rt abused its discretion in modify ing Koenig ’s child support obliga tion. W e over rule Koe nig’ s first and sec ond issues.

11CONCLUSION We affir m the order

of the district cour

t.

__________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Patterson, Pury ear and Pember

ton Affir med Filed: Mar ch 17, 2010

12