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Family Law Click here for the full text of this decision 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. FACTS:Jerry and Pauline Knott divorced in 1989. Pauline was given custody of the couple’s daughter, and Jerry was ordered to pay $50 per month in child support. In 1992, a trial court modified the original child support award by increasing it to $258 per month. Jerry married Jan in 1995. The couple signed a premarital agreement stating that each one would retain his or her own separate property, and the income derived from that property, throughout the course of the marriage. In 2001, Pauline moved to modify the 1992 support order. Apparently including income from Jan’s investments, the trial court granted the motion and increased the child support amount to $545.31 per month. Jerry appeals, arguing the trial court erred in including income from Jan’s separate property. HOLDING:Reversed and remanded. A trial court may modify a child support order if the circumstances of the child or a person affected by the order have materially and substantially changed since the original order. Looking only at Jerry’s income, his circumstances have not changed substantially; therefore, the court must have included Jan’s investment income, the court surmises. Pauline claims that Jerry may not escape paying child support by segregating Jan’s income from his net resources, but premarital agreements are allowable in Texas and may legitimately exclude property from the marital community property scheme, which is what the agreement between Jerry and Jan did. “Jan’s investment income, because it should be characterized as separate property under the constitutionally permitted premarital agreement, should not have been included in Jerry’s net resources.” Even if the court ignored the premarital agreement, the Family Code does not require the inclusion of a spouse’s income from dividends, capital gains and interest income. Family Code ��154.062(b) and 156.404(a) direct a trial court to include the parent’s salary, interest, dividends and capital gains, but not that of the parent’s spouse. “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.” Finally, there was no evidence that Jerry was underemployed or that he was diverting income to Jan or paying household expenses with his business funds. OPINION:Carter, J.; Morriss, C.J., Ross and Carter, JJ.

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