Opinion
No. 01-03-00058-CV
Opinion issued July 1, 2004.
On Appeal from the County Court at Law, Washington County, Texas, Trial Court Cause No. CCL3389.
Kathleen M. Anderson, Bastrop, TX, for appellant.
Hon. Paul A. Ehlet, Spinn, Ehlert, Spinn, Weisler Weisler, Brenham, TX, for appellee.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
MEMORANDUM OPINION
Debra Kay Dahmann, appellant, appeals from an order modifying an agreed decree of divorce by ordering Carl Dahmann, appellee, to pay child support in the amount of $54.80 per month. In two points of error, appellant contends that (1) the evidence was insufficient to rebut the presumption that setting child support in substantial compliance with the guidelines is in the best interest of the child or to justify deviating from the guidelines, and (2) the trial court abused its discretion by incorrectly applying the statutory child support guidelines and failing to set child support in substantial compliance with the guidelines. We reverse and remand
BACKGROUND
Appellant and appellee were divorced by agreed final decree on February 26, 2002. At the time of the divorce, the Dahmanns had three children: son Christopher, age 18, graduating from high school that May; son Stephen Ray, age 15; and daughter Kristie Kay, age 9. Christopher and Stephen Ray resided with appellee, while Kristie Kay resided with appellant.
On August 23, 2002, appellant filed a petition to modify the suit affecting the parent-child relationship, asserting that (1) her circumstances had "materially and substantially changed" since the rendition of the divorce decree, (2) support payments should be ordered paid by appellee; (3) no support payments previously had been ordered pursuant to the statutory guidelines. Appellee answered, contending that no material or substantial change had occurred in the circumstances of a child or person affected by the February 26, 2002 decree. After a hearing on appellant's motion to modify, the trial court found that a material and substantial change had occurred with regard to appellant, and that it would be in the best interest of the child, Kristie Kay, to order appellee to pay $54.80 per month in child support.
Tex. Fam. Code Ann. § 154 (Vernon Supp. 2004).
Subsequently, appellant filed a request for findings of fact and conclusions of law. The trial court's findings of fact and conclusions of law are as follows:
FINDINGS OF FACT
1. The parties were divorced on February 26, 2002 in Washington County, Texas by order entitled "Agreed Decree of Divorce" filed on February 26, 2002.
2. The parties have three children, Christopher Carl Dahmann, Stephen Ray Dahmann and Kristie Kay Dahmann. Stephen Ray Dahmann and Kristie Kay Dahmann on February 26, 2002 were and still are under the age of 18 and are not emancipated. Christopher Carl Dahmann is over the age of 18 and is not subject to the jurisdiction of the Court.
3. Pursuant to the decree of divorce, Petitioner has the right to designate the residence of Kristie Kay Dahmann and Respondent Carl Dahmann has the right to designate the residence of the child, Stephen Ray Dahmann. At the time of the entry of the decree of divorce and at the time of the hearing on October 24, 2002 Carl Dahmann was supporting Christopher Carl Dahmann and Stephen Ray Dahmann. Debra Kay Dahmann was supporting the child Kristie Kay Dahmann. At the time of the entry of the decree of divorce, the parties agreed that there would be no child support paid to each other. However, the parties agreed and the decree ordered that Carl Darlmann should at all times provide medical insurance for the children.
4. The income of Respondent, Carl Dahmann has not substantially changed from the income he had at the rendition of the decree of divorce. The Court finds that the gross monthly salary of Carl Dahmann is $4,576.00.
5. The Court finds that the gross income of Debra Kay Dahmann at the time of the divorce was $2,522.33 per month. The Court finds that as of the date of the hearing, that Petitioner's monthly gross income is $2,090.00. Therefore, the income of Petitioner has decreased by 17% from the date of the divorce.
6. The Court finds that the parties based their agreement regarding child support at the time of the decree, even though the parties had different earning levels, upon Carl Dahmann assuming educational expenses for a son beyond secondary school. Based upon this agreement at the time of the divorce, the party's respective net financial positions were considered similar at the time of the divorce. Therefore, the Court finds that since the financial position of Debra Kay Dahmann has worsened to the extent of $432.33 per month, this is to say that Carl Dahmann's position with respect to Debra Kay Dahmann is $432.33 per month greater than Debra Kay Dahmann. Therefore, the Court, after considering the net resources of Carl Dahmann on the day of divorce, and the net resources of Carl Dahmann on the date of the hearing in October, 2002, adjusted for the change in the parties' position of $432.33 per month, finds that Mr. Dahmann has $270.45 greater net resources than the Petitioner. Applying a percentage of 20% to this difference in financial position, the Court finds that child support in the amount of $54.08 should be paid to Mrs. Dahmann.
CONCLUSIONS OF LAW
1. The Court finds that there has been a material and substantial change of the circumstances of the Petitioner, Debra Kay Dahmann due to the 17% reduction in her income.
2. It is in the best interest of the child, Kristie Kay Dahmann that Carl Dahmann pays child support in the amount of $54.08 to Petitioner, Debra Kay Dahmann.
At the request of appellee, the trial court subsequently made the following additional findings of fact and conclusions of law:
FINDINGS OF FACT:
7. At the time of the entry of the Decree of Divorce and at the time of the hearing on October 24, 2002, Christopher Carl Dahmann and Stephen Ray Dahmann resided with Carl Dahmann. Carl Dahmann, at the time of the hearing on October 24, 2002, was contributing to the expenses for his son, Christopher Carl Dahmann, for education beyond secondary school.
8. Carl Dahmann is providing medical insurance for all of the three (3) children, Christopher Carl Dahmann, Stephen Ray Dahmann, and Kristie Kay Dahmann.
9. At the time of the entry of divorce, Debra Kay Dahmann was employed by the Burton Independent School District receiving a monthly gross pay of $2,159.17.
CONCLUSIONS OF LAW:
3. A strict application of the child support guidelines would be unjust or inappropriate when considering the evidence of all relevant factors.
DISCUSSION
Standard of Review
In general, a trial court's ruling on child support will not be reversed on appeal unless there is a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.-Houston [1st Dist.] 1999, no pet.). The test is whether the trial court acted arbitrarily, unreasonably, or without reference to guiding rules or principles. McGuire, 4 S.W.3d at 384. The reviewing court must review the evidence in the light most favorable to the trial court's actions and indulge every legal presumption in favor of the order. Id. There is no abuse of discretion if some probative and substantive evidence supports the order. Id. Sufficiency of the Evidence
In her first point of error, appellant contends that the evidence is insufficient to rebut the presumption that setting child support in substantial compliance with the guidelines is in the best interest of the child or to justify deviating from the guidelines. However, under an abuse of discretion standard, legal and factual insufficiency are not independent, reversible grounds of error; rather, they are relevant factors in assessing whether the trial court abused its discretion. McGuire, 4 S.W.3d at 387 n. 2; Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex. App.-Houston [1st Dist.] 1997, pet. denied); Mai v. Mai, 853 S.W.2d 615, 618 (Tex. App.-Houston [1st Dist.] 1993, no writ). Therefore, we consider the sufficiency of the evidence supporting the trial court's findings, using the appropriate standard of review. See Nordstrom, 965 S.W.2d at 578.
In an appeal of a judgment rendered after a bench trial, the court's findings of fact have the same weight as a jury's verdict. In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.-Houston [1st Dist.] 2002, pet. denied). When challenged, however, a trial court's findings of fact are not determinative unless they are supported by the record. Id. We review the sufficiency of the evidence supporting the challenged findings to determine whether the trial court abused its discretion in making such findings. Id. Our review of a legal sufficiency point requires us to consider only the evidence and inferences that tend to support the finding, disregarding all evidence and inferences to the contrary. Vannerson v. Vannerson, 857 S.W.2d 659, 666 (Tex. App.-Houston [1st Dist.] 1993, writ denied). If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the issue. Id. 1. Finding of Fact No. 6
Appellant complains about finding of fact number 6, wherein the trial court justified child support in the amount of $54.08 a month on the assumption that "the parties based their agreement regarding child support at the time of the decree, even though the parties had different earning levels, upon [appellee] assuming educational expenses for a son beyond secondary school [and that, b]ased upon this agreement at the time of the divorce, the party's [sic] respective net financial positions were considered similar at the time of the divorce." Appellant charges that the trial court developed this assumption at the modification hearing as evidenced by the following remarks:
The idea that I read from the [February 26, 2002] decree that was negotiated between the parties that says on the child support that there's no child support being ordered because [appellee] is supporting the children Christopher and Stephen, and that [appellant] is supporting the child Kristie Dahmann. Therefore — and I find it hard to believe that the parties didn't — weren't thinking that the child [Christopher, aged 18 on February 26, 2002, and to graduate high school in May 2002] was going to graduate in just a few more months so I'm sure people were thinking about college at the time.
Appellant asserts that nowhere in the divorce decree or the record is there evidence that the parties intended or agreed that appellee would pay college expenses for the oldest child. Nor, appellant asserts, is there any evidence that child support would not be paid because the parties intended or agreed for appellee to pay college expenses for any of the children. Thus, appellant contends, because there is neither evidence nor reasonable inferences from the evidence sufficient to support the trial court's deviation from the guidelines in setting the amount of child support obligation, the court abused its discretion by doing so. We agree.
a. The Evidence
With respect to child support, the decree provided that appellant, as possessory conservator of Kristie Kay, and appellee, as possessory conservator of Stephen Ray, had the exclusive right to "receive and give receipt for periodic payments for the support of the child." Further, the decree provided:
The Court finds that Carl Dahmann is supporting the children Christopher Carl Dahmann and Stephen Ray Dahmann; and that Debra Kay Dahmann is supporting the child Kristie Kay Dahmann. At the request and the agreement of the parties, this Court makes no further order for child support.
The decree provided that appellee would provide health insurance for the children "for as long as child support is payable under the terms of this Decree."
A review of the decree reveals no evidence of any agreement between the parties that appellee would assume educational expenses for any child of the marriage beyond secondary school. Nor is there evidence of any agreement between the parties to consider their respective net financial positions as "similar" at the time of the divorce. In testimony at the hearing on appellant's motion, both appellant and appellee testified that (1) Christopher, then age 18, resided with appellee, (2) Christopher was attending college, and (3) appellee was assisting Christopher with tuition expenses. Appellant acknowledged that, although Christopher had reached the age of 18 and had graduated from high school, both she and appellee had "responsibilities for him [Christopher]." However, neither party testified as to the existence of any agreement between the parties for appellee to assume educational expenses for any child of the marriage beyond secondary school. Nor did either party testify as to the existence of any agreement between the parties to consider their respective net financial positions as "similar" at the time of the divorce.
Christopher had a part time job and had a pending scholarship award. In Finding of Fact No. 7, the trial court found that, at the time of the hearing, Christopher was residing with appellee and that appellee was contributing to Christopher's educational expenses. See Tex. Fam. Code Ann. § 154.123(b) (Vernon Supp. 2004) (In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including, in pertinent part, the expenses for a son or daughter for education beyond secondary school.)
After reviewing the evidence in support of the trial court's finding of fact number 6, disregarding all evidence and inferences to the contrary, we conclude that the evidence was legally insufficient to support the trial court's findings that (1) the parties based their agreement regarding child support upon an agreement for appellee to assume educational expenses for a son beyond secondary school, and (2) the parties considered their respective net financial positions to be "similar" at the time of the divorce. See Vannerson, 857 S.W.2d at 666. Thus, we hold that the trial court abused its discretion in making such findings. See In re K.R.P., 80 S.W.3d at 673. Accordingly, we sustain appellant's first point of error.
The Trial Court's Application of the Statutory Child Support Guidelines
In her second point of error, appellant contends that the trial court abused its discretion by incorrectly applying the statutory child support guidelines and failing to set child support in substantial compliance with the guidelines. We agree.
The Family Code allows a trial court to 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 date of the order's rendition. Tex. Fam. Code Ann. § 156.401 (Vernon Supp. 2004). The primary consideration is the best interest of the child. Tex. Fam. Code Ann. § 156.402(b) (Vernon Supp. 2004). Application of the Code's child support guidelines is rebuttably presumed in the best interest of the child. Tex. Fam. Code Ann. § 154.122 (Vernon Supp. 2004).
A review of finding of fact number 6 reveals that the trial court's calculation of appellee's child support obligation is based squarely upon its unsupported speculation regarding the existence of an agreement between the parties that appellee would assume educational expenses for a son beyond secondary school, and that the parties considered their respective net financial positions to be "similar" at the time of the divorce. Because no probative or substantive evidence supports the assumptions upon which the trial court's calculations are based, we hold that the trial court abused its discretion. See McGuire, 4 S.W.3d at 384 (no abuse of discretion if some probative and substantive evidence supports the order). Accordingly, we sustain appellant's second point of error.
We further note that, in assessing child support, the trial court erred by applying the statutory schedule to the difference in the net resources of the parties. Under section 154.125(b) of the Family Code, the schedule is to be applied to the obligor's monthly net resources, which shall be calculated as provided by section 154.062. Tex. Fam. Code Ann. §§ 154.125(b), 154.062 (Vernon Supp.).
CONCLUSION
We reverse the order of modification of support and remand the cause for further proceedings consistent with this opinion.