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Family Law Click here for the full text of this decision FACTS:Jerry and Pauline Knott divorced. The divorce decree named Pauline as managing conservator and Jerry as possessory conservator of the couple’s minor child. The original divorce decree ordered Jerry to pay child support in the amount of $50 per month. On Jan. 24, 1992, the trial court approved an increase in Jerry’s monthly child support obligation to $258. In 1995, Jerry married Jan Hess. Before their marriage, Jerry and Jan signed a premarital agreement. This premarital contract specified that the property each spouse owned before their marriage, and any income or property generated by that separate property during the marriage, would remain the separate property of each individual spouse. On Dec. 5, 2001, Pauline petitioned the trial court to again modify Jerry’s child support obligation. Pauline contended in her petition that the”[c]ircumstances of the children or a person affected by the Order to be modified have materially and substantially changed since the rendition of the Order to [be] modified and support payments previously ordered should be increased until the children are 18 years of age . . . .” On April 25, 2002, the trial court received evidence and heard arguments regarding Pauline’s petition to modify the child support order. At the conclusion of the hearing, the trial court granted Pauline’s petition, increased Jerry’s support obligation to $545 per month, and ordered him to pay retroactive support totaling $2,298 in monthly installments of $75 until such retroactive child support is paid in full. The trial court filed its written judgment on June 4, 2002. HOLDING:Reversed and remanded. When a trial court is called on to characterize property held by persons within a marital estate, it must accord the property its nature as fixed by the Texas Constitution. Because the Texas Constitution explicitly recognizes the validity and usefulness of premarital agreements, the court believes trial courts should consider the express effects and intentions of such agreements when determining the value of one spouse’s estate, assuming, of course, the agreement was not made with the intent to defraud a creditor. To do otherwise would only serve to divest a citizen of his or her separate property for the benefit of another person without a justifying public purpose. Under the child support guidelines, if one looks only at Jerry’s income from his building contractor and cattle businesses, his child support obligation would be substantially less than $545 per month. The only other evidence regarding income consisted of documentary evidence (tax returns) listing Jan’s salary and investment income. Therefore, it appears the trial court included Jan’s earnings (her separate property) to arrive at Jerry’s requisite income level for ordering a $545 child support payment. This was error. Even if the trial court should have ignored the premarital agreement, the Texas Family Code does not require the inclusion of a spouse’s income from dividends, capital gains and interest income, even though these items might otherwise be characterized as community property absent a premarital agreement because 1. the Texas Family Code defines “resources” as one’s salary, interest, dividends, and capital gains; and 2. the Texas Family Code forbids inclusion of the net resources of the obligor’s new spouse in computing the obligor’s child support payment. Texas Family Code ��154.062(b), 156.404(a). Thus, a portion of the spouse’s assets that might traditionally be labeled as community property but are derivative of the spouse’s separate property or employment are outside the items which comprise the obligor’s “net resources” because they would fall entirely within the “net resources” of the obligor’s spouse. In Starck v. Nelson, 878 S.W.2d 302 (Tex. App. � Corpus Christi 1994, no writ), the 13th Court of Appeals reviewed a situation in which the trial court deviated from the child support guidelines because it found the obligor’s spouse’s contribution to their joint living expenses would enable the obligor to pay more child support than if he were solely responsible for his living expenses. Reviewing the overall scheme of calculating child support, the 13th Court of Appeals held the Texas Family Code did not expressly prohibit the trial court’s consideration of spousal contribution to household expenses. However, the court of appeals opined, “[T]he legislature was attempting to design a neutral scheme that would be unaffected by the remarriage of the child support obligor, either for the purpose of increasing or decreasing child support.” Based on this conclusion, the 13th Court held, “Permitting the [trial] court to deviate from child support guidelines because the obligor’s new spouse contributes to their joint living expenses allows the court to do indirectly what the statute directly prohibits.” The court then held the trial court erred by considering the degree to which the obligor’s spouse compensates for the obligor’s share of household expenses. The court agrees with the conclusion that the statutory method for calculating child support was not designed to impose a duty on an obligor’s spouse to support the obligor’s children using the income of the obligor’s spouse. The Texas Family Code expressly forbids a trial court from adding the resources of a new spouse to determine the amount of child support to be ordered. �156.404(a). Pauline did not allege Jerry was underemployed. Nor did she allege Jerry hid his business income by either diverting income to Jan or by paying household expenses with business funds. Had Pauline alleged and proved fraud or intentional underemployment, the trial court agreed, the trial court would have been statutorily authorized to deviate from the child support guidelines. Such a finding, however, was not made by the trial court. Accordingly, the trial court was not justified in deviating from the guidelines. OPINION:Jack Carter, J.; Morriss, C.J., Ross and Carter, JJ.

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