NO. 07-03-0524-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D MARCH 21, 2005

_______________________________ IN THE INTEREST OF BRITTANY NICOLE SANDERS

_______________________________ FROM THE 320 TH DISTRICT COURT OF POTTER COUNTY; NO. 63,497-D; HON. DON R. EMERSON, PRESIDING

_______________________________

Opinion

_______________________________ Before QUINN, REAVIS, and CAMPBELL, JJ. Gail Wayne Sanders (Sand ers ) appeals from an order establishing his parentage
as father of Brittany Nicole Sanders and o rdering him to pay retroactive child support of $52,400, attorney’s fees, and court costs. Though not contesting paternity, he n onetheless attacks the trial court’s 1) fail ure to exec ute findings of fact and conclusions of law supporting its determination, 2) award of $52,400 as retroactive support, and 3)award of $8,000 a s attorney ’s fees. We affirm t he judgme nt of the trial cou rt. Background The dispute before us involves the attempt by Rolisa Carol Utzman to establish that Sanderswas the father of her child Brittany and obtain retroactive child s upport. Brittany
was born on November 30, 1984, and Rolisa and Sanders continued to have a relationship2

through 1991. Through out this time and continuing through the date of trial, Sanders was married to

another person. After an evidentiary hearing, the trial court found that the amount of net resources available to Sanders beginning January, 1991, and continuing through May of 2003, was in excess of $4,000 per month. It also concluded that Sanders’ r etroactive c hild sup port was $400 per month for the same period and that he owed Utzman a total of $52,400. Issue One – Findings of Fact Sanders’ firstissue involves the trial court’s failure to timely execute findings of fact and conclusions of law . The record discl oses that he did a sk the tri al court to execu te findings of fact and conclusions of law p er Texas Rule of Civil P rocedure 296. And, though the trial court did not comply with the request within the time parameters established bythe applicable rules of

procedur

e, it nev ertheles s executed a set o n March 22 , 20 04. Those findings have also been made part of the appella te record. Furthermore, Sandershas not contended that they

are defi cient; nor has he asked for an opportunity to re-brief theissues in view of the fin dings an d conclu sions. Itis clear that we may remedy the trial cou rt’s failur e to execute findings and
co nclusions by abati ng the ap peal, rem anding t he cause , and dir ecting th e trial court to issue same. Lubbock County Cent. Ap

praisal District v. Contra rez, 102 S.W.3d 424, 426 (Tex. App.–Amarillo 2003, no pet.). Since the trial co urt effectuated that remedy sua sponte , we cann ot but ho ld that S anders’ complain t has become moot. Thus, we overrule the first issue.3

Issue Two

– Retroa ctive Ch ild Sup port Through his second issue, Sanders contends that the trial court abuse d its d iscretion in ordering him to pay $52,400 as retroactive support. This is allegedl y so because t he award lacks evidentiary support and the trial court fai led to re duce the sum by thesupport he had already paid. Moreover, the award supposedly lacks evidentiary support because the evidence fails to illust rate that hisnet resou rces exceeded $4 000 per m onth as found by the tri al court. We overr ule the i ssue. We review t he decis ion of th e trial court unde r the stan dard of abused d iscretion. See In re Tuc

ker, 96 S.W.3d 662, 668(Tex. Ap p.–Texa rkana 199 8, no pet .) ( stating that the courts of appeal review an award of retroactive child support for an abuse of discreti on); Garza v. Blant

on, 55 S.W.3d 708, 710 (Tex. App.–Co rp us Christi 2001, no pet.) (stating thatwhether to award retroactive support and the amount awarded l ies within the discretion of the trial court). Furthermore, whether it properly exercised its discretion depe nds upon notonly whether it acted with reference to guiding rules an d princi ples, In re Ham er, 906 S.W.2d 263, 265 (Tex. App.–Amarillo 1995, no writ), but also whether the decision enjoys evidenti arysupport. Se e id. at 265 n.1 (holding that while the ex istence of evidence supporting the trial court’s decision is not an independent ground of attack, it is none theless
an indiciato conside r when de termining if the tri al court abused i ts discreti on). More over, we are obli gated to view theevidence in the light mos t favorabl e to the trial court’s decision and indulge

in every presumpti on favori ng the jud gment. In re Tucker , 96 S.W.3d at664- 65. Next, should the trial court decide to award retroacti ve suppo rt, it is the n free to turn to the child support guidelines found in Chapter 154 of the Family Code to h el p in4

ascertaining the amou nt of the award. See T EX
. F AM
. C ODE A NN
. §154.131(a) (Vernon 2002) (stating that the “child support guidelines are intende d to guide the court in determining the amount of retroactive child support, if any, to be ordered”). And, w hile compliance with tho se guide lines is not mand atory, In reValadez , 98 0 S.W.2d 910, 913 (Tex. App.–Corpu s Christi 1998, pet. denied), it must nonetheless “consider” the “net resources” of the father during the relevant time period and whether 1) the mother of the child had made any prev ious atte mpts to no tify the father of his paternity, 2) the father had knowledge of his p aternity, 3) the or der of re troac tive child support will impose an undu e financial hardship on the father or his family, and 4) the father provided actual support or other necessaries before the filing of the action. T EX
. F AM
. C ODE A NN
. §154.131(b) (Vernon 2002). Finall y, the term “net reso urces” mea ns all th e incomereceived by the ob ligor, id. §1 54.062(b ), but not h is losse s. In re Grossnickle , 115 S.W.3d 238, 248 (Tex. App.–Texarkana 2003, no pet.); Fanning v. Fanning , 828 S.W.2d 135, 150 (Tex. App.–Waco 1992), rev’d on other ground s , 847 S.W.2d 225 (Tex. 1993) (involving the similarl y worded predeces sor to §15 4.062(b) of the Fa mily Cod e). The evidence of recor

d contains both the joint tax returns filed by Sanders and his wife during the years 1991 through 2001 and a summary of those returns. Theyillustra te thatthe couple had income totaling $1,261,748for the ten-year period. Moreover, dividing the sum byten resul ts in an average a nnual in come approxi mating $1 26,175. See Norris
v. Norris , 56 S.W.3d 333, 341-42 (Tex. App.–El Paso 2001, no writ) (holding that the trial court did not abuse its di s cretion in determining monthly resources by averaging the obligor’s income o ver a peri od of time ). And, w hile Sa nders tes ti fied thatmost of the1 Indeed, the t ri al cour t expresslyquesti oned the cred ibilit y of Sanders’ test imony attr ial . Thi s may be due to the evi dence that even though hi s estranged wif e supposedly owned the asse ts generati ng t he i nc ome he, none thel ess, ex erci sed ext ensive control over them and had incom e ge nera ted b y them sen t to his ow n ad dres s.

2 W hile authority ho lds that a trial court cannot arbitrarily a llot a pe rcen tage of com mu nity inco me to one spo use or an othe r, see e.g. , Powell v. Swanson , 893 S. W.2d 161, 163 -64 (T ex. A pp.– Ho usto n [1 stDist.] 1995, no writ ), we again not e that the t ri al cour

t had bef

ore i t evi dence i ndicat ing t hat Sander s, as opposed to hi s w i f e, op er at ed t he bu si ne ss es wh i ch ge ne r at ed t he i nc ome and had much of t hat i nco me se nt t o hi s ow n maili ng add ress
. Furt herm ore, he h ad su fficient mon ies to alleged ly buy ho me s for his child’s m other, reno vate those h omes, buy $70,000 worth of ostr iches, buy and gi ve cars to t he mother of hi s chi ld, and buy a quart er of

a mil li on doll ars wort h of car s whil e supposedl y havi ng li tt le i ncome of hi s own. Thi s provi des so me eviden ce upon whic h the t ri al cour t coul d have re asonablyall ott ed the i ncome appear ing on t he tax return s to S and ers.

3 In so hol ding we agai n note t hat busi ness l osses ( other than t hose suf

fer ed by a sel f-employe d ind ividu al) are exc lude d w hen dete rmin ing a n ob ligor’s n et res ourc es. In re Gr os sn ickle , 115 S. W.3d 238, 248 (Tex. Ap p.–T exa rkan a 20 03, n o pe t.); Fanning v. Fanni ng , 828 S.W.2d 135, 150 (Tex. App .–W aco 1 992) re v’d in part on other

grounds , 847 S .W.2 d 225 (Tex. 19 93). So, whi le t he tax retur ns indi cated t hat Sander s had little income f

or t ax purpos es due t o loss es he suf fer ed, t hat does not mean t hat he ha d li tt le i nc ome for purposes of de term ining h is child sup port o bligatio n. See Powell v. Swanson , 893 S.W .2d 161, 163 (Tex. App.–Houston [1 stDist .] 1995, no writ ) ( noti ng the di fference bet ween calcul ati ng resources for income t ax purposes an d ca lcula ting the m for p urp os es of ch ild support ). And, t o the ex tent he posi ts t hat vari ous of t he losses we re ac tually los ses exp erien ced wh ile self-e mp loyed , the trial co urt c o uld hav e rej ected t he proposi ti on that

he was self

-employ ed. Sanders did admit t o being the vi ce-pr esident of Cot tonwood Cove Invest ment Corporat ion, a co rpor ati on through which he conducte d many busine ss transact ions. Furthe rmo re , wh ile he also sugg ests that his a uto and real estate b usines ses w ere his o wn, he fail s to ci te us to evi dence il lust rat ing that

they were sol e propr iet orshi ps as opposed t o corporati ons. And, if they were th e latter , t hen he cannot be con side red s elf-em ploye d w hen ope rating them , given the se para te iden tity of a corporate entity. 5 income was earn ed by hi s wife or f ro m her sepa rate prop erty, the t rial cou rt was fre e to disbeli eve him. 1 So, it could wel l have d ecided to attribu te the en tire amou nt to him. 2 Next, given an average annual inco me of $126,175, and in view of the guidel ines appearing in §154. 0 61 of the Family Code (which guideli nes are used in calculating net monthlyincome), one could reasonably conclude from the record b efore us (and assuming thatthe trial court discredited his testimony about who generated the income) that San ders netmonthly income was around $7170 for that ten-year period. Finally, the latter sum does exceed $4000 per month, as found by the trial court. So, we reject Sanders’ argument that there “isinsuffic ient evi dence of Appella nt’s reso urces to s upport th e judgmen t . . . .” 36

We next address Sander’s attack upon the finding wherein the trial court determined that “the percentage applied to the first $6,000.00 of

. . . Sanders’ net resources for child support by the actual order rendered is 16 percent.” This argumentis premised upon the allegation thatthe trial court found Sanders’ net resources “to be $4,000.00not $6,0 00.00." However, the pertinent fin di ng actually states that his net resources were “in excess of $4,000.00 per month,” notsimply $4000. Furthermore, the calculations made earlier in this opinion could h ave supp orted a fi nding th at his in come app roximated $7000 per month. Additionally, 16 percent of $7000 and $6000 is $1120 or $960, respecti vely, and both sums
are far more than the $400 monthly support obligation that the court applied retroactively. So, in es sence, we cannot see how he was or i s harmed by the finding, assuming it is inaccurate. Sandersalso po sits that the tri al court needed to enter findings required by the FamilyCode. The findings in question i nvolved some explanation justifying the trial court’s decision to simply not set the support obligation at 20 percent of Sanders’ net resources. Yet, this arg ume nt is premised upon the acceptance of Sanders’ testimony that h is net
resources were actually far less than $4000 per mont h. As state d before, the trial court
was entitled to disbe lieve hi m and con clude th at his re sources were actually greater than that amou nt. We next consider

the suggestion that

the trial court erre d in fail ing to gi ve Sande rs creditfor the child support he pa id between 1991 and 2001. This argument is founded upon that port ion of th e Family Code req uiring th e trial court to consider whether the obligor provided actual s upport or other ne cessarie s to the c hild bef ore suit was init iated. T EX
. F AM
. C ODE A NN . §154.131(b)(4) (Vernon 2002). And, we reject it for several reasons.7

First, §154.13 1(b)(4) do es not ex pre ss ly require the trial court to credit an obligor with pastsupport payments. It simply states that the trial court “shall consider” whether the obligor provide s support

or neces saries i n orderin g retroact ive supp ort. T EX
. F AM
. C ODE A NN
. §154.131(b)(4) (Vernon 2002). Moreover, the plain meaning of the word “conside r” encompasses the act of thinking about or contemplating something. M ERRIAM -W EBSTER ’ S C OLLEGIATE D ICTI ONARY 265-66 (11 th ed. 2003). And, requiring one to think or contem plate abouta particul ar

act is a far cry from ordering that the particular act be done. Furthermore, inherentin the term is the concept of discretion; that is, while the person told to think about doing something may have to think about it, the directive leaves the decision whether to do the thing up to him. And, given this interpretation , we cannot say that the trial cou rtfailed to consid er Sande rs’ prior efforts at

support. For instance, thetrial co urt could have considered whether the houses and car given Rolisaby Sanders were actually intende d to be chi ld support. In so contemplating the matter, it could have recall ed the evidence illustrating that Sanders was living with Rolisa at the time while still married to his wife. And, ha d it so re called t hat e vide nce, it could have also concluded that maybe the house and car were actua lly prov ided tofacilitate the extramarital relation ship, an d not to help out his dau ghter. Additi ona lly, our analysis of the record (as discussed above) uncovered evidence th atwould h ave supp orted a fi nding th at Sande rs actual ly had mo nthly ne t re source s exceeding $6000, not just $4000. And, to the extent that the trial court was authoriz ed to presumptivelyorder an obligor to pay 20% of his net resou rces as child support (as previouslyarg ued bySanders), it could have found Sanders’ retroactive obl igation to be4 Twenty per cent of $6000 i s $1200. 8 $1200 per month, as opposed to simply $400. 4 Indeed, if it only f ound that Sa nders’
resources

were $4000 per month, the trial court could have ordered him to pay $800 pe r month in retroactive support. Yet, it merely ordered him to pay $400. Given this, we cannotsay that the trial court failed to “consider” Sanders’ prior attempts at support in determining the amount of retroactive support to award. Attorney’s Fees In his next an d last issue , Sanders alleges that the trial court erred in awardin g counsel for Brittany’s mother attorney’s fees of $8000. This was purportedly error because the recipient of the fees did not segregate the amount

incurred in prose cuting th e action to establish parentag e from that related to obtaining retroactive support. Moreover, such segregation purportedly was required becauseSandersadmitted to paternity immediately after he was sued. We overrule the issue. Statute provide s fo r the rec overy of attorney’s fees incurred in establishing parentage. T EX
. F AM
. C ODE A NN
. §160.63 6(c) (Vern on 2002)

. Furthermore, attorney’s fees maybe awarded in any s uit arising under Ti tle 5 of t he Texa s Family Code. T EX
. F AM
. C ODE A NN . §106.002(a) (Vernon Supp. 20 04-05). P roceedin gs to recover retroactive child support fall und er Title 5. See e.g. T EX
. F AM
. C ODE A NN . §154.0 09(a) (Ve rnon 200 2) (a provision allowi ng the co urt t o order a parent to pay retroactive child support and falling under chapter 154 of Title 5 of the Family Code). Thus, attorney’s fees may be awarded in a suit to

recover r

etroactive support . So, because fees are recoverable i n both a suit to establish parentage and to obtain retroactive fees and those were the two claims Brittany’s9

mother pursued, neither she nor her attorney were obligated to seg regate the fees as alleged by Sand ers. Having overruled all iss ues, we a ffirm the j udgment of the tria l court.

Brian Quinn Justice