Michael Slaughter v. Courtney Slaughter ( 2001 )

NUMBER 13-99-497-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

MICHAEL SLAUGHTER

, Appellant,

v.

COURTNEY SLAUGHTER

, Appellee.

___________________________________________________________________

On appeal from the 24th District Court of Victoria County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Rodriguez, and Seerden⁽¹⁾ Opinion by Justice Rodriguez

Appellant, Michael Slaughter, appeals from the denial of his motion to modify child support. Appellant complains that the trial court abused its discretion: (1) in failing to find a material and substantial change of circumstances had occurred due to appellant's incarceration; (2) in denying his motion based on findings of fact and conclusions of law not supported by the evidence; (3) in failing to set appellant's child support on the basis of the minimum wage presumption;⁽²⁾ and (4) in failing to modify the prior orders to delete the requirement that he provide health insurance for the child. We modify the judgment and, as modified, affirm.

Pursuant to a divorce decree of June 6, 1997, appellant was ordered to provide health insurance and to pay monthly child support in the amount of $741.00, to appellee, Courtney Slaughter, for the benefit of their child. On December 18, 1997, appellant filed a motion to reduce his support obligations. Appellant asserted that because he was incarcerated in the Texas Department of Criminal Justice, his circumstances had materially and substantially changed since the rendition of the child support order.

By his first issue, appellant complains the court abused its discretion in denying his motion to reduce child support. By issues two and three, appellant complains that there is no evidence or insufficient evidence to support the court's findings.⁽³⁾

The trial court retains broad discretion in making the equitable decision of whether to modify child support payments and, absent a clear abuse of discretion, the trial court's order will not be disturbed on appeal. See Hoffman v. Hoffman, 805 S.W.2d 848, 851 (Tex. App.--Corpus Christi 1991, writ denied); see also E.C., Jr., and S.C., minor children, v. Graydon, 28 S.W.3d 825, 828-29 (Tex. App.--Corpus Christi 2000, no pet.) (citing MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex. App.--Corpus Christi 1990, writ denied)). The test for abuse of discretion is whether the trial court acted in an arbitrary or unreasonable manner; in other words, whether the court acted without reference to any guiding rules or principles. See Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex. App.--Dallas 1999, no pet.); Mai v. Mai, 853 S.W.2d 615, 618 (Tex. App.--Houston [1st Dist.] 1993, no writ). Under an abuse of discretion standard in a family law context, errors premised on the insufficiency of the evidence are not segregable from an abuse of discretion issue. Scott v. Younts, 926 S.W.2d 415, 420-21 (Tex. App.--Corpus Christi 1996, writ denied) (citations omitted). Therefore, we will consider the sufficiency of the evidence in our analysis of points one, two and three.

"Findings of fact entered in a case tried to a court are of the same force and dignity as a jury's verdict upon special issues." Seidel, 10 S.W.3d at 368 (quoting Rapp Collins Worldwide, Inc. v. Mohr, 982 S.W.2d 478, 481 (Tex. App.--Dallas 1998, no pet.)). We therefore apply the same standards in reviewing the legal and factual sufficiency of evidence supporting the trial court's fact findings as we do when reviewing the legal and factual sufficiency of evidence supporting a jury's answer to a special issue. See Seidel, 10 S.W.3d at 368 (citation omitted).⁽⁴⁾

However, the court's findings of fact are not conclusive when the record contains a complete statement of facts. See Scott, 926 S.W.2d at 421 (citing Swanson v. Swanson, 228 S.W.2d 156, 158 (Tex. 1950)).

In order to modify a child support order, the Texas Family Code requires the movant to show there has been a material and substantial change in the circumstances of a child or a person affected by the order since the time the order was rendered. See Tex. Fam. Code Ann. § 156.401 (Vernon Supp. 2001). The best interest of the child shall always be the trial court's primary consideration in determining questions of child support. See MacCallum, 801 S.W.2d at 582 (citation omitted); see also Tex. Fam. Code Ann. §§ 156.122, 156.123 (Vernon Supp. 2001). The trial court has wide discretion in determining what is in the best interest of the child. See MacCallum, 801 S.W.2d at 582 (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). Moreover, the trial court is in the best position to observe each witness's demeanor and personality, and can feel forces, powers, and influences that cannot be discerned by merely reading the record. See E.C., Jr., 28 S.W.3d 829 (citing In re T            , 715 S.W.2d 417, 418 (Tex. App.--Dallas 1986, no writ)); see also Corpus Christi Teachers' Credit Union v. Hernandez, 814 S.W.2d 195, 197 (Tex. App.--San Antonio 1991, no writ) (fact finder's role is to judge credibility of evidence, assign weight given to testimony and resolve inconsistencies within or conflicts among witnesses' testimony).

Appellant asserts that he has no assets and no earnings in prison, therefore, he should not be obligated to pay child support.⁽⁵⁾ This argument was made and rejected in Hollifield v. Hollifield, 925 S.W.2d 153, 154 (Tex. App.--Austin 1996, no writ). We recognize, as did the Hollifield Court, that the trial court, having wide discretion in determining the best interest of the child, may consider a wide range of factors in setting support obligations. See id. In determining whether to modify an existing child support order, a court may consider the guidelines contained in Chapter 154 of the family code, but the court may also consider any other relevant evidence. See e.g. Tex. Fam. Code Ann. § 154.125 (Vernon 1996) (establishing guidelines according to number of children, where obligor's net resources are less than $6,000 per month); Tex. Fam. Code Ann. § 154.123 (Vernon 1996) (additional factors to be considered by trial court, including any financial resources available); Tex. Fam. Code Ann. § 156.402 (Vernon Supp. 2001) (court may consider other relevant evidence in addition to factors listed in guidelines). It is apparent from our review of the record that the trial court considered not only appellant's earning potential, but other financial resources available for the support of his child.

We first note that some inmates can earn income while in prison, and often enter prison with assets from past employment. See In re M.M., 980 S.W.2d 699, 701 (Tex. App.--San Antonio 1998, no pet.). In addition, as the San Antonio Court of Appeals has set out, "although [the obligor] may not be able to make payments now, the assessment makes it possible . . . to collect arrearages should his financial condition improve in the future." See id. at 701 (citing Tex. Fam. Code Ann. § 154.123(b)(17) (Vernon Supp. 2001) (allowing trial court to deviate from guidelines if in best interest of child)).

At the time of the hearing on appellant's motion to modify, appellant owned a savings and investment plan in the amount of approximately $24,000.⁽⁶⁾ The record also reveals that after monthly child support was ordered in the amount of $740.00 and immediately prior to the time he was incarcerated, appellant transferred ownership of his residence and a 3.8 acre tract of land to his father. The combined value of the house and land was approximately $60,000.00. Furthermore, appellant's father, the only witness who testified at the hearing, informed the court that he received monthly rent in the amount of $400.00 from the house. Additionally, appellant sold his pickup truck which was valued at $14,000, less a debt of $1,600. It is apparent that appellant had resources from which he could have paid his child support, had he chosen to do so. Appellant's father testified the asserts were transferred or sold in order to pay his son's legal fees and loans. However, appellant's father did not know how much his son owed, and conceded that despite his agreement to pay the fees, not all had been paid. He testified that he had not discussed what would happen to the property when appellant was released from prison.

Applying the legal rules set out above to this case, we conclude that the trial court's order denying appellant's motion to modify did not amount to an abuse of discretion. The order was supported by substantial evidence, more than a scintilla, and it was also not against the great weight and preponderance of the evidence. We overrule appellant's first, second and third issues.

By his fourth issue, appellant contends the trial court abused its discretion in not reducing his child support to $195.75 per month based on the statutory presumption found in section 154.068 of the Texas Family Code. We disagree. Section 154.068 provides that, "[i]n the absence of the wage and salary income of a party, the court shall presume that the party has wages or salary equal to the federal minimum wage for a 40-hour week." Tex. Fam. Code Ann. § 154.068 (Vernon 1996). The court, however, is under no duty to set an obligor's child support on the basis of the federal minimum wage standard. See id. Rather, the court must impose at least the minimum wage if there is no other evidence regarding his wages. See id. The established wage is then utilized to calculate the obligor's "net resources" pursuant to section 154.062 of the family code. See Tex. Fam. Code Ann. § 154.062 (Vernon 1996). Furthermore, in applying the guidelines to the net resources, the trial court may deviate from the guidelines when their application would be inappropriate or unjust under the circumstances. See Tex. Fam. Code Ann. §§ 154.121--154.125 (Vernon 1996). Accordingly, based on our review of the record before us, we conclude that the trial court did not abuse its discretion in refusing to set appellant's child support obligation based solely on minimum wage.

Finally, in his fifth issue, appellant contends the trial court abused its discretion in denying his motion to modify on the issue of providing health insurance for his child. We note that, at the hearing on appellant's motion to modify, appellee advised the trial court that if the child support remained at $741.00 per month, she would assume responsibility for health insurance that was otherwise ordered to be provided by appellant. We conclude, therefore, because we have affirmed the monetary support as ordered, the trial court's judgment should be modified to reflect appellee's concession regarding health insurance. Appellant's fifth issue is sustained.

Accordingly, we modify the judgment to provide that appellee shall provide and pay for health insurance for the child, and, as modified, affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 26^th day of April, 2001.

1. Senior Justice Robert J. Seerden assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. See Tex. Fam. Code Ann. § 154.068 (Vernon 1996).

3. Appellant specifically complains of the following findings of fact:

* * * * *

4. MICHAEL SLAUGHTER engaged in criminal activity prior to the entry of the Final Decree of Divorce which resulted in his felony conviction and incarceration with the Texas Department of Criminal Justice on September 9, 1997;

5. Immediately prior to his incarceration, MICHAEL SLAUGHTER owned real and personal property with a value sufficient to pay his child support during his period of incarceration;

6. At or about the time of his incarceration, MICHAEL SLAUGHTER conveyed real property to his father, MILTON SLAUGHTER, JR., for no consideration;

7. The amount of MICHAEL SLAUGHTER's current net resources is significantly less than what the Petitioner could be earning but for his choice to engage in activity which caused him to be incarcerated;

8. At the time of his incarceration and at the time of the hearing on the motion to modify, MICHAEL SLAUGHTER owned an interest in Lyondell Petrochemical Company 401(k) and Savings Plan with a balance of $24,475.10 as of December 31, 1998; and

* * * * *

11. The circumstances of the child have not materially and substantially changed since the rendition of the Final Decree of Divorce.

4. When reviewing legal sufficiency, we must view the record evidence in the light most favorable to the factfinder's decision. See Formosa Plastics Corp. U.S.A. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); Hines v. Comm'n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.--Corpus Christi 2000, no pet.). If there is more than a scintilla of evidence offered to support the finding, the legal sufficiency challenge fails. See Formosa Plastics, 960 S.W.2d at 48; Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). In reviewing a factual sufficiency challenge, we consider, weigh and examine all of the evidence which supports or undermines the finding of the trier of fact. See Plas-Tex, Inc. v. United States Steele Corp., 772 S.W.2d 442, 445 (Tex. 1989). We overturn findings only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

5. To the extent appellant asserts the argument that he is unemployed, whether it be characterized as voluntary or involuntary unemployment, his argument is not persuasive. "[U]nemployment is but one factor for the court to consider in exercising its broad discretion to modify existing support obligations in light of the best interests of the [child]." Hollifield v. Hollifield, 925 S.W.2d 153, 156 (Tex. App.--Austin 1996, no writ) (citations omitted); see Tex. Fam. Code Ann. §§ 156.401 & 156.401 (Vernon Supp. 2001). Furthermore, the Hollifield court determined that even if Hollifield was, in fact, involuntarily unemployed, this fact alone would not require the trial court to rescind his support obligations. Hollifield, 925 S.W.2d at 156.

6. We note the record reflects loan balances on the investment fund as of December 31, 1998, in the amount of approximately $10,000, leaving a net value of $14,000.