Thomas Paul Wooten v. State ( 2013 )


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  •                                   NO. 07-12-00312-CV
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL B
    FEBRUARY 20, 2013
    IN THE INTEREST OF D.S., A CHILD
    FROM THE 169TH DISTRICT COURT OF BELL COUNTY;
    NO. 249,572-C; HONORABLE GORDON G. ADAMS, JUDGE
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
    MEMORANDUM OPINION
    Appellant, Floyd Gene Slay (Floyd), appeals from the trial court’s order modifying
    the parent-child relationship as to child support. Floyd contends that the trial court
    abused its discretion in granting the modification because there has been no material
    and substantial change in either the financial resources of the parties or the needs of
    the child.   Additionally, Floyd contends that the trial court’s order of modification is
    against public policy. We disagree and will affirm the judgment of the trial court.
    Factual and Procedural Background
    Floyd and Crystal Slay (Crystal) were divorced in Virginia in 2009. At the time of
    the divorce and at the time of the hearing on the motion to modify, both were serving
    members of the United States Army. At the time of the hearing, both were domiciled
    and residing in Texas. The divorce decree recites that there was one child born of the
    marriage, D.S., the subject of the modification action.       The 2009 divorce decree
    affirmed, ratified, approved, and incorporated a Separation Agreement that the parties
    had signed in 2008. 1 The decree did not provide for a specific amount of child support
    for D.S.; rather, the agreement and decree provided that the parties would divide the
    child’s necessary expenses. Additionally, the agreement and decree did not provide for
    any standard visitation on a regular basis; rather, this was also left to the agreement of
    the parties.   As those types of agreements are wont to do, the parties’ agreement
    disintegrated, and, by 2011, the parties were not agreeing on either support or visitation.
    As a result of the perceived lack of agreement on the support and visitation
    issues, Crystal filed a motion to modify the out-of-state order, seeking modification of
    support and, by the date of trial, a modification of the terms of possession and access to
    the child. Floyd filed an original answer and a petition to terminate the parent-child
    relationship between himself and D.S.
    The trial court entered temporary orders on June 23, 2011, granting temporary
    support pursuant to standard guidelines and orders setting forth terms of possession
    1
    Floyd testified that he discovered by way of DNA testing in 2007—two years
    before the couple’s divorce decree—that D.S. was not his biological child. Despite
    being aware of that fact and learning the identity of D.S.’s biological father, Floyd
    entered into the Separation Agreement in which he agreed to “share joint legal custody
    [of] the minor child” and “retain full parental rights and responsibilities.” Further, we
    observe that, under the Uniform Parentage Act, as adopted by Texas, Floyd is deemed
    the presumed father of D.S. because Floyd was married to Crystal at the time D.S. was
    born in 2000. See TEX. FAM. CODE ANN. § 160.204(a)(1) (West 2008). This
    presumption of paternity may be rebutted by one of two methods: (1) an adjudication
    under Subchapter G or (2) the filing of a valid denial of paternity by a presumed father in
    conjunction with the filing by another person of a valid acknowledgment of paternity as
    provided by Section 160.305. 
    Id. 160.204(b). The
    record before us does not suggest
    that either method was undertaken in the instant case.
    2
    and access to the child pursuant to standard possession guidelines. Floyd’s action to
    terminate the parent-child relationship was based upon Texas Family Code section
    161.005(c). See TEX. FAM. CODE ANN. § 161.005(c) (West Supp. 2012). 2 A pre-trial
    hearing on the issue pursuant to Texas Family Code section 161.005(f) was held and
    the trial court denied the request. 3    This was finalized by the trial court’s order of
    denying the termination on March 17, 2012. No appeal was taken from the denial.
    On June 23, 2011, the trial court heard the final hearing on Crystal’s motion to
    modify support and the terms of possession and access to the child.             The only
    testimony presented at the hearing was that of Floyd and Crystal. At the conclusion of
    the hearing, the trial court took the matter under advisement. On February 1, 2012, the
    trial court issued a memorandum ruling granting the modification and set the child
    support at $880 per month. The trial court also noted that, by agreement of the parties,
    a standard possession order would be entered.              The memorandum ruling was
    confirmed by a final order entered on May 17, 2012. This appeal followed.
    Through two issues, Floyd contends that the trial court’s ruling—that a material
    and substantial change in the circumstances or financial needs of the child necessitates
    the modification—was an abuse of discretion and, further, that the order entered by the
    trial court is against public policy. We disagree and will affirm.
    2
    Further reference to the Texas Family Code will be by reference to “section
    ____” or “§ ____.”
    3
    The trial court’s ruling at the conclusion of the required preliminary hearing was
    that the factual basis of Floyd’s claim did not fall within the purview of the statute
    because Floyd knew of the paternity at the time the final divorce was rendered.
    3
    Modification of Support Obligation
    Standard of Review
    As an appellate court, we review the decision of the trial court to modify child
    support under an abuse of discretion standard. See In re C.C.J., 
    244 S.W.3d 911
    , 917
    (Tex.App.—Dallas 2008, no pet.). A trial court abuses its discretion when it acts without
    reference to any guiding principles or acts in an arbitrary and unreasonable manner.
    See Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241–42 (Tex.1985).
    When conducting a review for abuse of discretion, legal and factual sufficiency of the
    evidence issues are not independent grounds of error, but are relevant factors in
    assessing whether the trial court abused its discretion. See In re 
    C.C.J., 244 S.W.3d at 917
    .   If our review of the evidence finds some probative and substantive evidence
    supporting the trial court’s decision, there is no abuse of discretion. See 
    id. Applicable Law
    An existing child support order may be modified if the circumstances of the child
    or a person affected by the order have materially and substantially changed since the
    entry of the previous order. See § 156.401(a)(1) (West Supp. 2012). When making a
    determination regarding a material and substantial change of circumstances, we are
    directed to examine and compare the circumstances of the parents and the minor child
    at the time of the initial order with those circumstances existing at the time of the
    modification.    See 
    id. (citing, inter
    alia, In re J.R.D., 
    169 S.W.3d 740
    , 743–44
    (Tex.App.—Austin 2005, pet. denied)).         However, the breadth and depth of this
    comparison is the subject of much discussion in the cases.           See, e.g., Rooney v.
    4
    Rooney, No. 14-10-01007-CV, 2011 Tex. App. LEXIS 6682, at *9 (Tex.App.—Houston
    [14th Dist.] Aug. 23, 2011, no pet.) (mem. op.) (observing that a court’s decision
    regarding change of circumstances is not a rigid or definite rule-driven decision but is
    fact-specific). Further, the moving party may present evidence in the form of how much
    expenses had increased since the divorce and satisfy the requirement of proving a
    material and substantial change in conditions. See In re J.A.R., No. 12-11-00025-CV,
    2011 Tex. App. LEXIS 6759, at *11–12 (Tex.App.—Tyler Aug. 24, 2011, no pet.) (mem.
    op.) (concluding that mother not required to present evidence of financial circumstances
    at time of divorce because her testimony was presented in terms of how her expenses
    had changed since the divorce). The movant has the burden to prove the required
    change of circumstances. See In re 
    C.C.J., 244 S.W.3d at 918
    .
    In the case before the Court, Floyd requested findings of fact and conclusions of
    law. See TEX. R. CIV. P. 296. 4 The record reflects that these were not filed by the trial
    court. Following the initial request, Floyd filed a reminder of past due findings of fact
    and conclusions of law. See Rule 297. The record does not reflect that the requested
    findings of fact and conclusions of law were filed. In such a situation, the failure of the
    trial court to file the requested findings and conclusions is not necessarily harmful error
    if the record before us affirmatively shows that the complaining party suffered no injury.
    See In re S.R.O. 
    143 S.W.3d 237
    , 242 (Tex.App.—Waco 2004, no pet.) (citing Tenery
    v. Tenery, 
    932 S.W.2d 29
    , 30 (Tex. 1996) (per curiam)). 5 Where, as here, no findings of
    4
    Further reference to the Texas Rules of Civil Procedure will be by reference to
    “Rule ___.”
    5
    Floyd does not contend that he suffered any injury as a result of the trial court’s
    failure to file findings of fact and conclusions of law.
    5
    fact or conclusions of law are filed, the reviewing court must presume that the trial court
    made such findings and conclusions as are necessary to support the judgment. See
    Johnson v. Graze Out Cattle Co., No. 07-10-0518-CV, 2012 Tex. App. LEXIS 5790, at
    *8 (Tex.App.—Amarillo July 18, 2012, no pet.) (mem. op.) (citing Black v. Dallas City
    Child Welfare Unit, 
    835 S.W.2d 626
    , 630 (Tex. 1992)).
    Analysis
    Floyd couches his issue in terms of the trial court’s decision being an abuse of
    discretion and, as such, this argument will be viewed as contending that the evidence
    was insufficient to support the trial court’s judgment.   The sufficiency of the evidence
    inquiry, in an abuse of discretion standard of review, is a two prong test. See In re
    T.D.C., 
    91 S.W.3d 865
    , 872 (Tex.App.—Fort Worth 2002, pet. denied) (op. on reh’g.).
    First, we inquire, did the trial court have sufficient information upon which to exercise its
    discretion? 
    Id. Second, did
    the trial court err in its application of discretion? 
    Id. Regarding the
    first inquiry, the evidence demonstrates that Floyd had paid
    expenses of approximately $300 per month toward raising the child prior to the
    breakdown in communication. Further, the record shows that, prior to sometime in late
    2010, the parties were still attempting to work out any problems they had about support.
    However, following that time, the parties’ ability to communicate with each other
    became very limited. Subsequently, Floyd ceased making any type of regular support
    payments. Additionally, Crystal testified that at the time of the original agreement and
    decree, she was living in base housing. However, upon moving to Fort Hood, she was
    unable to acquire base housing. Crystal’s uncontradicted testimony was that the wait
    6
    list for on base housing was over a year. As a result of this situation, Crystal purchased
    a home.    Though the amount of the mortgage payment was not specified in the
    testimony, the fact that it was more expensive than on base housing was never
    contested. What Crystal was to do in the year waiting for on base housing to come
    open is something that Floyd never mentioned or addressed. Floyd contends that this
    change in circumstances should be given no probative value and cites the Court to In re
    J.A.H. for the proposition that Crystal’s purchase of a home was simply a change of
    lifestyle and not a material or substantial change in circumstances. See 
    311 S.W.3d 536
    , 542 (Tex.App.—El Paso 2009, no pet.).             The facts of J.A.H. are clearly
    distinguishable from the facts of this case. In J.A.H., the movant, the mother, remarried
    and purchased a home twice as expensive as the former home to fit her new family. 
    Id. Accordingly, the
    court in J.A.H. found this not to be a change of circumstances. 
    Id. In our
    case, Crystal bought a home when faced with a one-year delay in her ability to
    acquire on base housing. Therefore, we do not find J.A.H. to be controlling on the issue
    of change of circumstance as it pertains to Crystal.
    In addition to the change in Crystal’s circumstances, the trial court heard
    testimony about the change in Floyd’s circumstances. At the time of the agreement and
    decree, Floyd was responsible for raising his biological daughter and was paying
    support for his biological son. At the time of the hearing on this case, the son was 19,
    and Floyd was no longer paying support for him. The daughter had turned 18 but was
    still in high school, and Floyd made some contributions to the cost of raising her but was
    not paying a regular amount of child support.
    7
    Finally, all parties agreed that, at the time of the decree, the child, the subject of
    the case at bar, was eight years old. By the date of the hearing before the trial court,
    the child was 11 years old. The child was active in various sports, and Crystal was
    bearing the expense of all of those activities. Prior to the separation, the child had been
    active in sports; however, the testimony reflected that Floyd had coached most of the
    child’s teams and the child’s participation did not always carry costs. Further, both
    Floyd and Crystal agreed that the expense of raising the child had increased as the
    child got older.
    In the final analysis, the record shows an agreement that was no longer
    workable, and the result was that Floyd was paying sporadically and in amounts that
    were essentially left to his discretion. The evidence shows that the circumstances of
    both Crystal and Floyd had changed. Finally, the record demonstrates clearly that the
    cost of raising the child had increased, a point Floyd does not contest. Based upon all
    of these factors, we find that the trial court did have sufficient information upon which to
    make a decision. See In re 
    T.D.C., 91 S.W.3d at 872
    . Under this method of analysis,
    this finding is a finding that the evidence was sufficient to support the decision of the
    trial court.   
    Id. Additionally, we
    infer that the trial court made the findings and
    conclusions necessary to support its judgment. See Johnson, 2012 Tex. App. LEXIS
    5790, at *8 (citing 
    Black, 835 S.W.2d at 630
    ).
    Our second inquiry is whether the court erred in the application of its discretion.
    See 
    id. Inasmuch as
    the evidence supports a material and substantial change of
    circumstances, the trial court followed the guidelines of the Family Code in granting the
    motion to modify. See § 156.401(a)(1). Therefore, the trial court did not abuse its
    8
    discretion in modifying the child support order. See 
    Downer, 701 S.W.2d at 241-42
    .
    Accordingly, Floyd’s first issue is overruled.
    Public Policy Issue
    Floyd’s second issue argues that the trial court’s order was against public policy.
    Floyd’s issue is premised on the questionable assertion that Crystal is allowed to get
    support for the child from two sources, Floyd and the biological father. The record
    reflects that the biological father had only made a few sporadic gifts to the child and was
    not making any regular support payments. Further, Floyd posits that allowing this to
    occur is against public policy.     This legal assertion is without any citation to legal
    authority. Floyd attempts to avoid this deficiency by asserting that this question is one
    presented to the Court on first impression. Yet, the discussion of the issue does not
    even guide the Court to any authority or substantive analysis that would allow us to
    reverse the trial court for its decision. As such, the issue is not properly briefed. See
    TEX. R. APP. 38.1(i). We decline the invitation to speculate. Floyd’s second issue is
    overruled.
    Conclusion
    Having overruled both of Floyd’s issues, we affirm the judgment of modification
    entered by the trial court.
    Mackey K. Hancock
    Justice
    9