Randall Gene Glash v. Arlene Sue Glash ( 2006 )

Affirmed as Modified and Memorandum Opinion filed October 10, 2006

Affirmed as Modified and Memorandum Opinion filed October 10, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00846-CV

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RANDALL GENE GLASH, Appellant

V.

ARLENE SUE GLASH, Appellee

On Appeal from the 309th District Court

Harris County, Texas

Trial Court Cause No. 01-63546

M E M O R A N D U M   O P I N I O N

This case is an appeal from an order awarding child support.  Appellant, Randall Gene Glash, and appellee, Arlene Sue Glash, were divorced in 2002.  In 2003, Mrs. Glash filed a petition to modify the parent-child relationship and establish child support.  Following a bench trial, the trial court appointed Mr. and Mrs. Glash joint-managing conservators of their two children and ordered Mr. Glash to pay child support.  In two issues, Mr. Glash contends the trial court abused its discretion by granting child support in excess of the statutory guidelines. We modify the judgment and affirm as modified.

I.  Standard of Review

We review a trial court=s order granting child support under an abuse of discretion standard.  Worford v. Stamford, 801 S.W.2d 108, 109 (Tex. 1990); Evans v. Evans, 14 S.W.3d 343, 345B46 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  A trial court abuses it discretion when it acts arbitrarily or without reference to guiding principles.  Worford, 801 S.W.2d at 109; Evans, 14 S.W.3d at 346.  Under this standard, legal and factual sufficiency of the evidence are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion.  Zieba v. Martin, 928 S.W.2d 783, 786 (Tex. App.CHouston [14th Dist.] 1996, no writ).  A trial court does not abuse its discretion when there is some evidence of a substantive and probative character to support the trial court=s order.  Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.CHouston [14th Dist.] 2004, no pet.).

II.  Discussion

An order of child support that conforms with the guidelines under the Texas Family Code is presumed to be in the best interests of the children.  See Tex. Fam. Code Ann. ' 154.122(a) (Vernon 2002).  However, a court may determine that the application of the guidelines would be unjust or inappropriate under the circumstances. Tex. Fam. Code Ann. ' 154.122(b) (Vernon 2002). In determining whether application of the guidelines would be unjust or inappropriate, the trial court must consider a non-exhaustive list of seventeen factors, which include the needs of the children and the financial resources of the parents. See Tex. Fam. Code Ann. ' 154.123 (Vernon 2002).

If the amount the trial court orders varies from the amount computed by applying the guidelines, the trial court must make findings.  Tex. Fam. Code Ann. ' 154.130(a)(3) (Vernon 2002).  The findings must include, in relevant part, a statement as to whether the application of the guidelines would be unjust or inappropriate, the monthly net resources of the obligor and the obligee, and the specific reasons for the variance.  Tex. Fam. Code Ann. ' 154.130(b) (Vernon 2002).

Here, the trial court determined that Mr. Glash=s net monthly resources were $3,947.  Applying the guidelines, the trial court found that Mr. Glash should pay $987 per month in child support, an amount equal to approximately twenty-five percent of his net monthly resources.  See Tex. Fam. Code Ann. ' 154.125 (Vernon 2002) (specifying child support payments for two children should equal twenty-five percent of the obligor=s net monthly resources).  Instead, the trial court ordered Mr. Glash to pay $1200 per month in child support, an amount equal to approximately thirty percent of his net monthly resources.  The specific reasons the trial court gave for departing from the guidelines are as follows:

(1) Children=s father did not respond properly to discovery and court believes his total resources are large enough to make the award;

(2) father=s ability and his financial resources available;

(3) other benefits provided to father were not disclosed; and

(4) the award is in the best interest of the children taking into consideration the circumstances of the parents.

A.      Net Monthly Resources

Mr. Glash first disputes the trial court=s finding with respect to his net monthly resources.  Specifically, he contends the trial court did not deduct the correct amounts from Mr. Glash=s gross income to account for taxes and other obligations.  See Tex. Fam. Code Ann. '  154.061 (Vernon Supp. 2005) (providing a tax chart to aid in the calculation of an obligor=s net monthly resources); Tex. Fam. Code Ann. '  154.062 (Vernon 2002) (listing amounts that must be deducted from Aresources@ to determine net resources available for child support). 

The trial court appeared to base its finding on a letter of employment offering Mr. Glash $5,300 per month to begin April 2005. Applying the 2005 tax chart as provided in section 154.061 to a gross income of $5,300 per month, Mr. Glash=s net monthly resources would be approximately $3,985.  See Tex. Fam. Code Ann. ' 154.061; Evans, 14 S.W.3d at 348 (extrapolating from the tax chart to calculate the net monthly resources of an obligor). Therefore, under the guidelines, Mr. Glash would owe approximately $996 per month for two children. See Tex. Fam. Code Ann. ' 154.061.  The trial court found Mr. Glash would owe $987 under the guidelines.  The small difference between the trial court=s finding and the amount owed under the guidelines is in appellant=s favor. Moreover, the amount is de minimis and within the trial court=s discretion. Accordingly, we conclude the trial court did not abuse its discretion in determining the amount of child support owed by Mr. Glash under the guidelines.

B.      Variance from the Guidelines

In his second issue, Mr. Glash contends the evidence does not support the trial court=s variance from the child support guidelines.  The first three reasons specified by the trial court relate to the financial resources available to Mr. Glash, including resources the trial court believed were undisclosed.  The trial court must require a party to furnish information sufficient to accurately ascertain that party=s net resources, including Acopies of income tax returns for the past two years, a financial statement, and current pay stubs.@  Tex. Fam. Code Ann. ' 154.063 (Vernon 2002).  The record on appeal does not contain copies of any income tax returns.  Nor is there a Afinancial statement,@ although Mr. Glash provided a Asummary of account balances@ for one checking account.¹ With respect to current pay stubs, the record contains a pay statement dated April 2005, which reflects a gross pay of $1,238.37 for the pay period and for the year-to-date amount.  Although there was testimony and other evidence that Mr. Glash made over $100,000 after working in Iraq in 2004, there is also evidence that Mr. Glash had been unemployed for several months.  There was no evidence concerning the value of Mr. Glash=s savings, if any.  Nor was there any evidence concerning the nature and amount of Mr. Glash=s assets and liabilities.  Thus, apart from the letter offering $5,300 in monthly wages, there was no evidence as to the financial resources Mr. Glash had available for the payment of child support.

The trial court also generally found the additional child support to be Ain the best interests of the children.@  Child support awarded in conformance with the guidelines is presumed to be in the best interest of the children.  See Tex. Fam. Code Ann. ' 154.122(a).  If evidence is admitted that rebuts the presumption, the trial court may deviate from the guidelines.  Tex. Fam. Code Ann. ' 154.123.  In this case, however, there was no evidence rebutting that presumption.  The testimony at trial centered on Mr. Glash=s failure to comply with discovery requests, the children=s health insurance, and attorney=s fees.  Although Mrs. Glash testified that she spent money on school supplies and extra-curricular activities, there was no indication that the amount of child support awarded under the guidelines would be insufficient to cover these costs.  No other information was provided concerning the nature or amount of the children=s expenses. 

The trial court appeared to award the additional child support primarily as a discovery sanction.  The trial court=s primary responsibility in a modification proceeding is to consider the best interests of the children, not to punish an offending party.  In re Hood, 113 S.W.3d 525, 529 (Tex. App.CHouston [1st Dist.] 2003, no pet.).  Discovery sanctions serve three purposes: (1) to secure the parties= compliance with the discovery rules; (2) to deter other litigants from violating the discovery rules; and (3) to punish parties who violate the discovery rules.  Tidrow v. Roth, 189 S.W.3d 408, 412 (Tex. App.CDallas 2006, no pet.).  Although the choice of discovery sanctions under Rule 215.2 of the Texas Rules of Civil Procedure is within the discretion of the trial court, the sanction imposed must be just.  Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003).  However, a trial court may not impose a sanction that is more severe than necessary to satisfy its legitimate purpose. Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996). Case‑determinative sanctions may only be imposed in exceptional cases where they are clearly justified and it is fully apparent that no lesser sanctions would promote compliance with the rules.  Spohn Hosp., 104 S.W.3d at 882.  Rule 215.3 further requires a trial court to give notice and an opportunity to be heard prior to the imposition of sanctions.  See Tex. R. Civ. P. 215.3. 

Here, the trial court=s variance from the child support guidelines levied as a discovery sanction was an abuse of discretion.  Mr. Glash received discovery requests for his financial records including bank statements and tax returns.  Mr. Glash testified that he obtained as much information as he had and produced it to Mrs. Glash.  Although Mrs. Glash=s attorney stated at trial that orders compelling discovery had been entered, no orders compelling discovery appear in the appellate record.  Further, the trial court ordered Mr. Glash to pay attorney=s fees of $5000 to Mrs. Glash=s attorney as a sanction for failure to respond to discovery.  Finally, Mr. Glash was afforded no notice or opportunity to respond to the allegations that he had violated discovery orders prior to the entry of judgment.  We find the trial court abused its discretion in awarding child support as a discovery sanction without giving notice and an opportunity to be heard or considering lesser sanctions.  Appellant=s second issue is sustained.

The judgment of the trial court is modified to delete the finding of $1200 per month child support.  The trial court=s finding that $987 per month is the appropriate amount of child support to be paid under the guidelines is left undisturbed. The judgment of the trial court is affirmed as modified.

/s/      Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed October 10, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

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¹  The summary reflects the balance of the account at the beginning of every month over a period beginning February 2003 and ending January 2005.  The balance on the account ranged from $43.23 at its lowest to $57,814.60 at its highest.  No averages are provided.