### IN THE TENTH COURT OF APPEALS
No. 10
- 07
- 00347
- CV
IN THE INTEREST OF A .A.G. AND C.L.G.G., CHILDREN

From the County Court at Law No
. 1 Brazos County, Texas Trial Court No. 04
- 000585
- CV
- CCL 1

O P I N I O N
The sole issue presented in this appeal is whe ther monies received as part of a structured settlement annuity are considered in the calculation of “net resources” for purposes of calculating child support under Texas Family Code Chapter 154. T EX . F AM

. C ODE A NN . C H . 154 (Vernon 2008 ). The trial court excluded monies received monthly from an annuity created from the proceeds of a personal injury settlement by creating a distinction between an annuity and a settlement annuity for purposes of determining net resources under Texas Family Code Section 154. 062. T EX . F AM . C ODE A NN

. § 154.062 (Vernon 2008). We reverse and remand the trial court’s judgment. Standard of Review
We generally review a trial court's determination of child support under an
abuse of discretion standard. Wilemon v. Wilemon , 930 S.W. 2d 290, 293 (Tex. App.

—In the Interest of A.G.G. Page 2

Waco 1996, no writ); see also Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles

. See Beaumont Bank, N.A. v.
Buller , 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

- 42 (Tex. 1985); Doyle v. Doyle , 955 S.W.2d 478, 479 (Tex. App.

— Austin 1997, no pet.). If there is some evidence of a substanti ve and probative character to support the decision of the trial court, no abuse of discretion occurs. Wilemon , 930 S.W.2d at 294. However, this case involves a determination of statutory construction, which we decide without giving weight to the trial cou rt’s determination, generally referred to as
a de novo review . City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008). In construing statutes, we ascertain and give effect to the Legislature's intent as expressed by the language of the statute. See Stat e v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired. T EX . G OV’T C ODE A NN . § 311.011(b) (Vernon 2005 ). Statutory Construction
It is a well

- settled rule of statutory construction that every word of a statute must be presumed to have been used for a purpose , and those excluded must be presumed to
have been likewise excluded

. See Quick v. City of Austin , 7 S.W.3d 109, 123 (Tex. 1998); Laidlaw Waste Sy s., Inc. v. City of Wilmer , 904 S.W.2d 656, 659 (Tex. 1995). Further, when provisions of the same statute may be in conflict, courts should harmonize them to give effect to both by assigning each a meaning that will permit each to stand. See Helena
Chem. Co. v. Wilkins , 47 S.W.3d 486, 493 (Tex. 2001). A court should not assign aIn the Interest of A.G.G. Page 3

meaning to a statutory provision that would be inconsistent with other provisions of the same act, even though it might be susceptible to such a construction standing alone. See Tex. Dep't of Transp. v. Needham , 82 S.W.3d 314, 318 (Tex. 2002); Clint ISD v. Cash Invs.,
Inc. , 970 S.W.2d 535, 539 (Tex. 1998). Further, when a general statutory provision
conflicts with a more specific provision, "the provisions shall be construed, if possible, so that effect is given to both." T EX . G OV’T C ODE A NN

. § 311.026( a) (Vernon 2005)

. If
the conflict between a general provision and a more specific provision is irreconcilable, "the special or local provision prevails as an exception to the gen eral provision, unless
the general provision is the later enactment and the manifest intent is that the general provision prevail." T EX . G OV’T C ODE A NN

. § 311.026(b ) (Vernon 2005)

. The Statutes
The conflict here arises in the determination of whether an a nnuity purchased for purposes of paying out a personal injury settlement is to be included as a resource under Texas Family Code Sections 154.062(b)(5) and (c). T EX . F AM . C ODE A NN

. § 154.062(b)(5) & (c) (Vernon 2008). Section 154.062(b)(5) includes in th e definition of
“resources:”
all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities , capital gains, social security benefits, unemployment benefits, disability and workers’ compensation ben efits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.
T EX . F AM . C ODE A NN

. § 154.062(d)(5) (emphasis added). However, section (c) defines
what are not included as resources:In the Interest of A.G.G. Page 4

(1) return of principa l or capital; (2) accounts receivable; or (3) benefits paid in accordance with aid for families with dependent children.
T EX . F AM . C ODE A NN

. § 154.062(c) (emphasis added). The term “annuity” is defined as: 1. An obligation to pay a stated sum, usually monthly or annually, to a stated recipient; 2. A fixed sum of money payable periodically; 3. A right, often acquired under a life insurance contract, to receive fixed payments periodically for a specified duration; ... 5. A savings account with an
insuran ce company or investment company, usually established for retirement
income.” B LACK’S L AW D ICTIONARY 99 (8 th ed. 2004). As there are multiple definitions of an annuity, there are also many types of annuities for different purposes. Principal is defined in relevant part as “the amount of a debt, investment or other fund, not including interest, earnings, or profits.” B LACK’S L AW D ICTIONARY 1231 (8 th ed. 2004). In this case, an annuity was purchased as a means to pay out a settlement
from a lawsuit over a span of years. The issue is whether the amounts received by
Guedea , the father, constitute a return of principal, which is not a resource, or whether
it constitutes income that would be included as a resource. The Attorney General , on behalf of the St ate of Texas, contends that the term “annuity” as it is used in Section 154.062(b) would include the entire amount of every payment under the annuity agreement. Guedea contends that no portion of the payments under the annuity agreement should be included

. We believe the answer is somewhere in between these contentions which we are
unable to determine based on the record before us. The evidence the trial court neededIn the Interest of A.G.G. Page 5

to decide the issue is what portion of the payments being received represent a return of principal and what portion represents the interest being earned for the use or forbearance of the entire amount of the settlement proceeds. 1 All annuities have three critical components. For the payment of a sum of money by one person or entity, the recip ient of the payment will pay money to another person the amounts on the dates agreed to in the annuity contract. Thus, the three critical elements are (1) the receipt of money, (2) the passage of time, and (3) the payment or return of money. Inherent in this process is the inclusion of interest for the acceptance of the payout of the settlement over time. Deviation from the Guidelines The legislature demonstrated its intent to allow the trial court to deviate from a purely mathematical formula for calcula ting child support by enacting Section 154.123.
T EX . F AM . C ODE A NN

. § 154.123(3) (Vernon 2008). This provision allows the Court to consider, among other things, “any financial resources available for the support of the child” in deviating from the child support guidelines. In this case, the trial court specifically did not utilize this provision. There is no question that the trial court’s computation of child support was based on the complete exclusion of all of the monthly annuity payments. This was erroneous. We sustain the Attorney General’s sole issue.

1 We do not reach the question of whether any portion of the annuity payment actually represen ts a return of principal because the record is not clear about the financial arrangements regarding the settlement and resulting purchase of the annuity. The focus of the hearing was on the entire annuity amount rather than the details about its original purchase.In the Interest of A.G.G. Page 6

Conclusion Having found that the exclusion of the entire annuity on these facts was erroneous, we reverse and remand to the trial court for further proceedings in accordance with this opinion.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Reverse and Remand Opinion delivered and filed Ju ly 1 , 2009 [CV06]