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Garza v. Blanton8/31/2001
Dissenting Opinion by Justice Castillo
Appellant, Desiree Garza, appeals the trial court's judgment denying her request for retroactive child support from appellee, Carl Blanton. We affirm.
Appellee engaged in an extramarital affair with appellant from which union the child in this case was conceived. The record indicates, and it is undisputed by appellee, that he knew, before the child's birth that: 1)appellant was pregnant; 2) the child was probably his; and 3) the approximate date as to the child's birth. Furthermore, appellee paid appellant a lump sum of $2,000 before the child was born and separate payments of $1,500, $809.47, and $275 after the birth of the child. Ultimately, appellee acknowledged paternity of the child. The child was born on September 4, 1999, and on November 1, 1999, appellant filed suit for child support. Appellant sought an order establishing a child support payment schedule, as well as an order awarding appellant retroactive child support payments in the amount of $5,191.64 for the time period beginning with the date of the child's birth and ending on the date the court's order was entered. The final judgment of the trial court awarded appellant child support payments of $551.84 per month. However, the trial court refused to order retroactive payments.
At issue is whether the trial court abused its discretion in refusing to award retroactive child support. Appellant argues that the trial court abused its discretion by not applying the guidelines imposing retroactive support found in the Texas Family Code. See Tex. Fam. Code Ann. § 154.131 (Vernon 1996).
Retroactive child support is not mandated by the Texas Family Code when paternity is established, but rather, is left to a factual determination on the part of the trial judge. In the Interest of Benjamin I. Valadez, 980 S.W.2d 910, 913 (Tex. App.-Corpus Christi 1998, pet. denied); In the Interest of S.E.W., 960 S.W.2d 954, 955 (Tex. App.-Texarkana 1998, no pet.). Retroactive child support may be ordered by the court if the nonpaying parent had not previously been ordered to pay support and was not a party to a suit in which support was ordered. Tex. Fam. Code Ann. § 154.009 (Vernon 1996) (emphasis added). If paternity has been established and the court has ordered retroactive child support, the trial court must consider the guidelines found in Chapter 154, as well as any other relevant factors, in determining the amount of retroactive child support. Tex. Fam. Code Ann. § 160.005 (Vernon 1996). When ordering retroactive child support, a court must consider the net resources of the obligor during the relevant time period, and whether: 1) the mother of the child had made any previous attempt to notify the biological father of his paternity or probable paternity; 2) the biological father had knowledge of his paternity or probable paternity; 3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor's family; and 4) the obligor has provided actual support or other necessaries before the filing of the action. Tex. Fam. Code Ann. § 154.131 (Vernon 1996). However, section 154.131 does not bind the trial court to the listed factors in determining retroactive child support; it merely states that, "the child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered." Tex. Fam. Code Ann. § 154.131 (Vernon 1996); see Valadez, 980 S.W.2d at 913.
A trial court maintains discretion in deciding whether to award retroactive child support, and the amount of the award. Valadez, 980 S.W.2d at 913. The judgment of the trial court will not be reversed absent an abuse o
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