1 John T. Boyd, Chi ef Justice (Ret.), Seventh Court of Ap peals, sitting by

assignment . Tex. Gov ’t Code Ann. §75.002(a)(1) (Vernon Supp. 2002). NO. 07-98-0105 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E DECEM BER 17, 2002

______________________________ IN THE INTEREST OF JILL NICOLE GUINN AND BRANDON JE REMY GUINN

_________________________________ FROM THE 355 TH DISTRICT COURT OF HOOD COUNT Y; NO. 92-609-D; HON ORABLETOM CRU M, JUD GE

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, SJ. 1
In four issues, appellant Chuck Guinn challen ges a n or der m odif ying thechil d support to be paid by him . In those issues, h e argues that the trial court erred in: 1) increasing child support because there is no evidence, or in the alternative, insufficient evidence th at th e c i rc ums tanc es of the chil dren or a perso n affected by the ord er have
m ate rially

and sub stantially c hanged s ince the d ate of t he order’ s re n dition; 2) faili ng to2

make child suppo rt f

act find ingsas req ues ted by app ellan t; 3 ) ab usin g its disc ret ion in calculating net resources for thepurpose of setting child support; and 4) considering the i nc ome ta x deductions appellant received by virtue of his present w ife and dependents when calculating net resources for the purpose of setting child support. For re as on s we state hereafter, the j udgme nt of the trial court is reversed. Appellee Donna Rene S eay and appellant were m arried on or about April 25, 1980, and were divorced on May 11, 1983

. To that marriage, two chil dren, who are the subject of this suit, were born. They are Jill Nicole Guinn, a fem ale, born on October 10, 1980, and Brandon Jerem y Guinn, a m ale, born on Decem ber 28, 1981. In thedivorce judgm ent, appell ant’s child support was se t atan am ount of $300 per m onth. Appellant did not pay child support for the m onths of April and May 1997. Subsequent ly, appellee filed a motion seeking enforc em ent of t he child sup port oblig ation, and concomitantly, a m otion seeking
a mo dification of

and increase in the am ountof child support. On Novem ber 3, 1997, after hearing, the trial court e ntere d the or der gi ving rise to thi s appea l. As ma terial here, the child support paym ent was increased to $377.32.
Because of t he q ues tion s involve d in t his appeal, a brief recitati on of the evide nce produced at the m odification hearing is necessary. In June 1996, appellant began working atthe Duncan Ranc h located in Ham ilton Coun ty. The re cor d sh ows th at h e was p aid $800 per m onth, with his gross inc ome f or seven m onths in 1996 being $14,563. In connecti on with his ranchi ng duties, ap pell ant has access to, and uses, a ranch house2 Actually, 20.63% of $1,828.50 is $377.22, but the difference is notma terial to our

discussion. 3 which also doubles as an off ice. Appellant is also provided the use of a truck owned by his em ployer for use in connection with his ranch duties. There is no testimon y about any pecuniary value of the use of the t ruck and the house. Appellant hastw

o ot her chil dre n by

a s eco nd w ife in addition to the twochildren that
are thesub

j ect of t his proceeding, and appellee has a daughter by her s econd husband. Through her em ployer, appellee purchased medi cal insura nce which cos ts her $55 per mont h.
The trial cour t foun d appellant’s net incom e to be $1,828.50 per m onth. After deducting $64 0 fo r fe der al inco me tax, $902. 30 for social security, and $211.02 for Me di ca re , a pp el l an t’ s n et i nc ome for seven m onths w as $12, 800. Thetrial court divided that nu mber b y seven to arrive at a net income of $1,828.50 per m onth. The trial judge then mu ltipli ed that figure by 20.63 % and ar rived at a figure of $377.32, 2 which is the
amoun tto which he in cre ase d th e m ont hly c hild support. In arr iving at t he in cre ase d ch ild support figure, the judge did not use the 199 7 statu tor y em ployed p ers onstax cha rt in arriving at appe llant’s net m onthly inco m e becau se, thecourt f elt, that statutorytax

chart did not take into acco unt the addi tional tax deduction which benefitted appellant by virtue of his other two dependent children born to his other m arriage.4

Reiterated, in his fi rst iss ue, app ellant argues that the evidence is insufficient to show a m aterial change of circumstance in regard to the childre n since the date of the original support order. Fam ily Code section 156.401, both now and at the tim e of the modification order, provi des two grounds form odif icat ion of pr

evio usly ord ere d ch ild support. Tex. FamCode Ann. § 15 6.401 (Vernon 2002) . The first ground is if the circumstances of the children or a party affected by the order have m aterially and substantia lly chan ged since the date of the order’s rendition. Id. The second gro und is if it has been three years since the order was rendered o r last modified and them ont hly
amoun tof the child suppo rtawa rd under the prior o rder differ s by either 20% or $100 from the am oun t th at w

ould be aw ard ed in accord anc e w ith t he c hild support guidelines at the time of t he m odification. Id.
We have no record of the testimony received at the divorce he ar in g. Howe ve r, we do have a record of the testimony produced at the m odification hearing. There is no testimony

as to the am ount of m oney appellee ma de at the tim e of the hearing, a nd there is no testi mony as to the am ount she was m aking at the timeof the divorce. Likew ise, there is no testimon y as to the am ount of the children’s ex penses either at the time of the divo rceor t he m odif

icat ion h ear ing. In dee d, t he o nly testimon y concerning a change of circ um sta nceis t hat

of a ppe llant , in which he avershe m ade m ore mo ney at the tim e of the divorce than at the tim e of the m odification hearing.5

Appellee does not j oin issue on the question of the evidence of a m aterial change of ci rc umst an ce . Ra th er , sh e a rg ue s, th e mod if ic at io n wa s ju stified un der the second prong of the statute w hich allows a change if it has been three years since the original order was entered, and the m onthly amou nt of child support set in thatprior order differs byeither 20% or $100 fromthe am ount that w ould be award ed in accord anc e w ith c hild support gu id el in es . F or re as on s th at wil l b ec ome a pp ar en t, we will consider that argum ent after our di scussion of app ella nt’s third and fourth issue s.
In his third issue, as we have noted, appellant argues the trial court abused its discretion in calcul at ing his net resources for the purpose of determ ining child support. In his fo urt h is sue, appellant contends the trial court erred in considering the additional i nc ome tax deductions he recei ves because of his second w ife and her dependents rather than usin g th e em ployed p ers onstax cha rt contain ed in sec tion 154 .06 1 of

theFam ily Code. See Tex. Fam . Code Ann. § 154.061 (Vernon 2002).
Asdid a ppe llant , we w ill dis cus s bo th p oints to get her becaus e th ey a re s o clo sely related. The sta tutory

tax cha rt provides a m ethod of calculating net m onthly income of a child support obl igor by subtr acting fro m m onthly gro ss wages t he social security taxes and federal income tax

withh olding for a single indivi dual claiming one personal exem ption and the standard deduction. Id. ( “Instructions for Use”). Appellant reasons that

the prop er calculat ion for his c hild support should have been $336.68. He arrives at that figure because, using the earning figures we have ment ioned6

above and app lying his m ont hly netinco m e s how n on the199 7 ta x cha rt, his total m ont hly neti nc ome would be $1,632, rather than the $1828.50 used by the trial court. M ultiplyi ng $1,632 by the 20.63% factor use d by the trial court wou ld equal $336 .68, th e figure appellant argues should have been the am ount set for his child support.
The Family Code spec ificall y states tha t “[t]h e c our t sh all de du ct

. . . f ed er al i nc ome taxb ased on the tax

rate for a single person claiming one personal ex empt ion and th e standa rd deduct ion . . . . ” See Tex. Fam . Code Ann. §154.062 (d )(2) (Vernon 2 002). Federal income tax regulations and the Fam ily Code do not m irroreach other in met hods of calculating income. Powell v . Swanson, 893 S.W.2d 161, 163 (Tex.App. –Houston [1 st Dist.] 1995, n o wr it). Because m any child s upport o bligors do not file their federal i nc ome tax returns as single persons, the sta tutory tax chart is intended to be u sed by cou rtsin calculating net incom e for th e purpos e of determ ining child supp ortpaym ents. Wright v. Wright, 867 S.W.2d 807, 814 (Tex.App.–E l Paso 1993, writ denied). By f ailing to follow the statutorydire ctio n, t he t rial cour t re ver sibly erred in the am ount of child support set by it. The m ont hly

child support should have been set at $336. 68 pe r mon th . T he re fo re , we must sustain appell ant’s third an d fourth issu es.
Because the am ount of child support that should have set by the trial court does not differ by either 20% or $100 from that previously set, our sustention of appellant’ s third and fourth issues obviates the necessity to discuss appellee’s argum entthatthe am ount7

setby the t rial court c omplies with section 156.401(a)( 2) of the Family Code. It also obviates the necessity for discuss ion of appellee’s second issue. Accordingl y, the order of the trial court is reversed and the cause rem anded to the trial court for further proceedings in accordance w ith this opinion.
Per Curiam Do not publish.