in the Interest of Y.E. and L.E., Minor Children ( 2022 )

Affirmed and Memorandum Opinion filed February 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00608-CV
IN THE INTEREST OF Y.E. AND L.E., MINOR CHILDREN
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Cause No. 2017-23093
MEMORANDUM OPINION
Appellant Abdulrahman Elyoussef appeals from the trial court’s order
denying his petition to modify the amount of child support that he had agreed he
would pay his former spouse, appellee Nour Barbarawi, in an Agreed Final Decree
of Divorce (“Agreed Divorce Decree”). Because Elyoussef has not established
that the trial court abused its discretion when it denied his request to reduce his
child support obligation, we overrule his issues on appeal and affirm the trial
court’s order.
BACKGROUND
Elyoussef and Barbarawi’s marriage ended in 2018 when the trial court
signed the Agreed Divorce Decree. It is undisputed that during the marriage,
Elyoussef started a successful flooring business in Tomball. Elyoussef agreed that
he would pay $2,000 child support for his two young children each month.
Elyoussef additionally agreed to provide health insurance for his children. In
addition to payments related to his children, Elyoussef agreed to make monthly
payments to pay off the almost $6,000 balance owing on a credit card in
Barbarawi’s name that had been used for the flooring business. Finally, Elyoussef
agreed to pay Barbarawi $50,000 to compensate her for her community interest in
the flooring business, which would be paid at the rate of $1,500.00 per month.
Elyoussef quickly fell behind in his child support payments. The trial court
eventually held Elyoussef in contempt for failure to pay that obligation. At the
time the trial court signed the contempt order, it found that Elyoussef owed
$13,200 in unpaid child support. It also found that Elyoussef had ceased making
the other payments required by the Agreed Divorce Decree.
Three days after the contempt hearing, Elyoussef filed an Original Petition
to Modify Parent-Child Relationship seeking a reduction in the amount of his
monthly child-support obligation. Elyoussef alleged that there had been a
substantial change in the circumstances of a child or a person affected by the
Agreed Divorce Decree. Elyoussef’s modification request went to trial before the
bench.
At the time of the modification trial, the children were three and six years of
age. The youngest child had medical issues related to late development and was
enrolled in a special needs program at her school. The child also received speech
and occupational therapy. The youngest child is also enrolled in a gymnastics
2
program as a substitute for additional occupational therapy. According to
Barbarawi, the oldest child is gifted and talented, participates in gymnastics, but
Barbarawi had been forced to cancel the child’s involvement in extra language
classes, ballet lessons, and soccer when Elyoussef stopped making his child-
support payments. Barbarawi believed it was in her children’s best interest to
participate in these activities.
During the trial, Elyoussef admitted that he had not made all the child-
support payments required by the Agreed Divorce Decree. Elyoussef asserted that
he ceased making the required payments because his flooring business had failed
and he did not have any money. At the time of the modification trial, Elyoussef
was living with his mother in a house owned by a brother. Elyoussef admitted he
did not pay anything for living in his mother’s house.
Elyoussef testified that he had been in the flooring business since 2007.
After he married Barbarawi, Elyoussef opened Prime Floors, LP with a business
partner. Elyoussef eventually bought out his partner making him the sole owner of
Prime Floors. Elyoussef admitted that he made as much as $120,000 a year while
married. Barbarawi however, testified that Elyoussef made more than $150,000
per year during the marriage because numerous expenses, including groceries,
vacations, and gas, were paid for using cash from Prime Floors’ business. A
business valuation performed at the time of the original divorce proceeding valued
Prime Floors at $635,000.
Elyoussef testified that he walked away from his flooring business.
Elyoussef gave various reasons for his abandonment of what had been a thriving
business generating close to two million dollars in annual revenue. He testified the
business failure resulted (1) from an inability “to keep up with the bills and [the
business] had a lot of repairs,” (2) when the business lost three of its largest clients,
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(3) from the business being evicted from the premises, and (4) because the
business had three loans with high interest. Elyoussef admitted that he had no
documents establishing an eviction, that he took nothing from the premises when
he left, and that a friend took over the business which was located in a building that
had been the location of a Tomball flooring business for over forty years. The
evidence established that Elyoussef received nothing in return for his abandonment
of his flooring business. Barbarawi also testified that the new owner of the
flooring business is a friend of Elyoussef.
Elyoussef introduced various bank records during the trial. These included
bank statements for Prime Floors from 2018 through March 2019. They also
included bank statements for the months of August through December 2019 for Y
& L Construction, LLC. Elyoussef testified that he set up this company and bank
account to accept payments from Today’s Sales, a company he worked for after he
walked away from Prime Floors.1 Finally, he introduced bank statements from his
own Chase bank account for the months of July 2019 through June 8, 2020.
According to Elyoussef, these records support his contention that his income went
down to “almost nothing actually.”
At no point during the bench trial did Elyoussef testify or offer any
documentary evidence on his current income. While Elyoussef did testify that his
income went down to almost nothing, he also admitted that while working for
Empire Flooring, he earned “3 to 3500 bucks for that three month [sic]” between
1
Elyoussef actually testified that he set up a company called Wide Open Construction.
The bank records are for Y & L Construction. There is no direct evidence connecting Wide
Open Constriction with Y & L Construction LLC. However, while being questioned about the Y
& L Construction bank accounts, Elyoussef testified that he set up the account for Wide Open
Construction to accept payments from Today’s Sales.
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July and October 2019.2 In addition, the Y & L Construction bank records reveal
that Elyoussef earned $4,208.96 in August 2019 and $4,748.85 in September 2019,
a total of $8,957.81 for two months’ work. Despite this income, Elyoussef paid
child support and arrearages totaling $875.00 in August 2019 and $75 in
September 2019.
Elyoussef also testified that he occasionally drove for Uber. In support of
that assertion, Elyoussef produced records from Uber for February, March, and
April of an unspecified year. The records indicate the number of trips he
completed, the amount of time he was online seeking trips, his acceptance rate for
trips, and the amount he earned for each week. Elyoussef earned a total of $682.82
during that three-month period driving for Uber. Elyoussef explained that he was
let go by Uber because he did not have insurance, which he claimed he could no
longer afford to keep on his vehicle, a Toyota Sequoia.
Elyoussef also testified about his car loan on the Sequoia. Elyoussef
admitted that he was behind on his car payments to Toyota. He also testified that
some months he chose to make payments on his vehicle loan rather than pay his
child-support obligation because he needed a car. Elyoussef admitted that he had
not made any car payments since March 2019. Despite not making any payments,
Elyoussef testified that he continued to drive the Sequoia, but when he was not
driving it, he hid it at a friend’s house.
Elyoussef admitted that he has access to other financial resources. In one
instance in February 2019, Elyoussef paid $1,100 to Toyota Financial on his
Sequoia loan, but he mistakenly paid it from Barbarawi’s account. Elyoussef
obtained enough cash from his brother to almost immediately reimburse
2
Empire Flooring is also known as Today’s Sales.
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Barbarawi’s account. In addition, when the trial court held Elyoussef in contempt
in July 2019 for failing to pay his child-support obligation, Elyoussef paid $1,000
to avoid being jailed immediately. He then made another payment of $2,000,
which his brother provided, one day before the entry of the contempt order with the
suspended commitment.
The trial court denied Elyoussef’s motion to modify in its entirety.
Elyoussef requested that the trial court prepare findings of fact and conclusions of
law and then filed a past-due notice. Barbarawi subsequently filed proposed
findings of fact and conclusions of law. The trial court eventually signed findings
of fact and conclusions of law. Among other findings, the trial court found that
Elyoussef (1) “was not a credible witness;” (2) “did not demonstrate a material and
substantial change of circumstances for a party or child that would justify the
requested reduction in child support;” and (3) “did not demonstrate that the
requested modification would be in the children’s best interest.” The trial court
then concluded that “there has been no material and substantial change of
circumstances since the prior order” and “the requested modification is not in the
children’s best interest.” Elyoussef did not file a request for additional or amended
findings of fact and conclusions of law pursuant to Rule 298 of the Texas Rules of
Civil Procedure. This appeal followed.
ANALYSIS
Elyoussef lists six issues in his brief. Elyoussef does not, however, organize
the argument section according to those six issues. Instead, he raises numerous
arguments on appeal only loosely connected to his list of issues. Therefore, to
more efficiently address Elyoussef’s arguments, we group them by subject and
address them accordingly.
I. Standard of review and applicable law
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The Texas 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.” See Tex. Fam.
Code § 156.401(a-1). A change in a parent’s income can constitute a material and
substantial change warranting a change in the amount of child support a parent is
required to pay. Reagins v. Walker, 524 S.W.3d 757, 761 (Tex. App.—Houston
[14th Dist.] 2017, no pet.). In determining whether a modification of child-support
payments is appropriate, a trial court should consider the circumstances of the child
and the parents at the time of the prior child-support order as compared to the
circumstances existing at the time of the trial of the modification suit. In re
K.A.M.S., 583 S.W.3d 335, 346 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
The trial court may consider the child-support guidelines. Id. (citing Tex. Fam.
Code § 156.402(a)). It may also consider other relevant evidence. Id. (citing Tex.
Fam. Code § 156.402(b)). The trial court’s consideration of the child-support
guidelines in a modification proceeding is discretionary, not mandatory. Tex. Fam.
Code § 156.402(a); In re K.A.M.S., 583 S.W.3d at 346. In addition, the best
interest of the child should be the trial court’s primary consideration in deciding
whether to modify a child-support obligation. See Tex. Fam. Code § 156.402(a);
In re K.A.M.S., 583 S.W.3d at 346.
Because a trial court possesses broad discretion in determining whether to
modify a child-support order, a reviewing court will not disturb the trial court’s
determination absent a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990) (per curiam); In re K.A.M.S., 583 S.W.3d at 346. An abuse
of discretion only occurs when the trial court acts without reference to any guiding
rules or legal principles. Worford, 801 S.W.2d at 109; see also Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Under the
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abuse of discretion standard, the legal and factual sufficiency of the evidence are
not to be considered as independent grounds of error, but as relevant factors in
assessing whether the trial court did in fact abuse its discretion. Hardin v. Hardin,
161 S.W.3d 14, 19 (Tex. App.—Houston [14th Dist.] 2004, no pet.). When
applying the abuse-of-discretion standard in this context, we ask first whether the
trial court had sufficient information on which to exercise its discretion, applying
traditional sufficiency review, and if so, whether it acted reasonably in the
application of its discretion. See Reagins, 524 S.W.3d at 761.
When, like here, a trial court makes specific findings of fact and conclusions
of law following a bench trial and a reporter’s record is before the appellate court,
the findings will be sustained if there is evidence to support them, and the appellate
court will review the legal conclusions drawn from the facts found to determine
their correctness. Trelltex, Inc. v. Intecx, L.L.C., 494 S.W.3d 781, 789 (Tex.
App.—Houston [14th Dist.] 2016, no pet.). Findings of fact have the same force
and dignity as a jury’s verdict and are reviewable under the same standards of legal
and factual sufficiency. Foley v. Capital One Bank, N.A., 383 S.W.3d 644, 646
(Tex. App.—Houston [14th Dist.] 2012, no pet.).
Because the trial court failed to find a material and substantial change of
circumstances—an issue on which Elyoussef bore the burden of proof—the
evidence is legally insufficient only if it conclusively establishes that there has
been such a change. In re N.H.N., 580 S.W.3d 440, 445 (Tex. App.—Houston
[14th Dist.] 2019, no pet.) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241
(Tex. 2001) (per curiam)). In making this determination, we must view the
evidence in the light most favorable to the trial court’s actions and indulge every
legal presumption in favor of the judgment. Id. We also bear in mind that the trial
court is the sole judge of the witnesses’ credibility and the weight to be given to
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the evidence. Id. When considering the factual sufficiency of the evidence of a
material and substantial change of circumstances, we review the entire record to
determine whether the great weight and preponderance of the evidence show that
there has been such a change. Id.This Court is not a factfinder. Maritime Overseas Corp. v. Ellis, 971 S.W.2d
402, 407 (Tex. 1998). Instead, the trier of fact, in this case the trial court, is the
sole judge of the credibility of the witnesses and the weight to afford their
testimony. GTE Mobilnet of South Texas L.P. v. Pascouet, 61 S.W.3d 599, 615–16
(Tex. App.—Houston [14th Dist.] 2001, pet. denied). Therefore, we may not pass
upon the witnesses’ credibility or substitute our judgment for that of the trial court,
even if the evidence would support a different result. Id. If we determine that the
evidence is factually insufficient, we must detail the evidence relevant to the issue
and state in what regard the contrary evidence greatly outweighs the evidence in
support of the challenged finding; we need not do so when we affirm. See
Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per
curiam).
We review a trial court’s conclusions of law de novo. Trelltex, Inc., 494
S.W.3d at 790. When performing a de novo review, we exercise our own
judgment and redetermine each legal issue. Id. To make this determination, we
consider whether the conclusions are correct based on the facts from which they
are drawn. Id.II. The trial court made findings of fact and conclusions of law.
Elyoussef initially argues that the trial court failed to make findings of fact
and conclusions of law after he had timely requested them as required by the Texas
Rules of Civil Procedure. Having examined the appellate record, we disagree.
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As summarized above, the trial court made findings of fact and conclusions
of law in response to Elyoussef’s request. To the extent Elyoussef is complaining
that the trial court’s findings were late pursuant to the twenty-day deadline found
in Rule 297, we once again disagree. See Tex. R. Civ. P. 297 (providing that a trial
court “shall file its findings of fact and conclusions of law within twenty days after
a timely request is filed”). The Supreme Court of Texas has made it clear that trial
courts may file findings and conclusions beyond the deadline provided in the
Rules. See Ad Villarai, LLC v. Chan II Pak, 519 S.W.3d 132, 141, n.7 (Tex. 2017)
(“While the rules create a deadline for the trial court to file findings, those
deadlines do not bar late findings.”). As the supreme court explained, the deadline
under the Rules for a trial court to make findings “marks the point after which the
party requesting findings may assert appealable error.” Id. Elyoussef asserts that
the trial court’s deadline to make findings was September 7, 2020. Assuming that
is true, the trial court signed its findings and conclusions a week later on
September 15, 2020. Elyoussef has not pointed out how he was harmed by this
one week delay. See Nachtman v. Carey, No. 14-98-00148-CV, 1999 WL 976440,
at *2 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (op., not designated for
publication) (citing Robles v. Robles, 965 S.W.2d 605, 610 (Tex. App.—Houston
[1st Dist.] 1998, pet. denied)) (“Unless the appellant can show injury, there is no
remedy if a trial court files untimely findings and conclusions.”).
Elyoussef also appears to argue that the trial court’s findings and
conclusions were deficient because they were insufficiently specific and did not
include any “evidentiary basis” for the trial court’s denial of his request to reduce
his child support obligation, nor findings related to Barbarawi’s intentional
underemployment or unemployment contentions. Rule 298 provides a party a
remedy when it believes a trial court’s findings are inadequate to support its
10
judgment. This rule allows a party to make “a request for specified additional or
amended findings or conclusions.” Tex. R. Civ. P. 298. “The failure to request
additional findings of fact and conclusions of law constitutes a waiver on appeal of
the trial court’s lack of such findings and conclusions.” Robles, 965 S.W.2d at
611. Here, Elyoussef did not request that the trial court make additional findings
or conclusions. As a result, he has waived any complaint about the adequacy of
the trial court’s findings and conclusions.
Finally, even if Elyoussef had preserved his complaints about the adequacy
of the trial court’s findings and conclusions, we conclude he has not shown error
by the trial court, nor that he was harmed. Elyoussef asserts on appeal that he is
left to guess about the basis of the trial court’s ruling because the trial court did not
make findings setting out the specific evidentiary basis for its judgment nor on
Barbarawi’s intentional unemployment or underemployment allegation. Elyoussef,
however, was not entitled to findings on every controverted fact. Zhang v. Capital
Plastic & Bags, Inc., 587 S.W.3d 82, 89 (Tex. App.—Houston [14th Dist.] 2019,
pet. denied). Indeed, “a trial court is not required to make additional findings of
fact and conclusions of law that are unsupported in the record, evidentiary, or
contrary to other previous findings.” Aaron v. Aaron, No. 14-10-00765-CV, 2012
WL 273766, at *9 (Tex. App.—Houston [14th Dist.] Jan. 31, 2012, no pet.) (mem.
op.). Instead, a trial court is required to “make additional findings of fact only if
they have some legal significance to an ultimate issue in the case.” Vickery v.
Comm’n for Lawyer Discipline, 5 S.W.3d 241, 255 (Tex. App.—Houston [14th
Dist.] 1999, pet. denied). We conclude that the trial court did that in its original
findings when it found that Elyoussef did not demonstrate (1) “a material and
substantial change of circumstance for a party or child of the marriage that would
justify the requested reduction in child support;” and (2) “that the requested
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modification would be in the children’s best interest.”
Elyoussef was also not harmed by the trial court’s alleged failure to make a
finding on Barbarawi’s intentional unemployment/underemployment allegation.
Because such a finding is mandatory only if the trial court bases its decision on
intentional unemployment or underemployment, we conclude that because the trial
court made no such finding, it establishes that the trial court rejected the allegation.
See Iliff v. Iliff, 339 S.W.3d 74, 82 (Tex. 2011) (“To facilitate appellate review and
to encourage consistency in the exercise of this discretion across the state, the trial
court must make a finding of intentional unemployment or underemployment and
its decision to base child support on earnings potential rather than actual earnings
must be supported by the record.”).
III. Sufficient evidence supports the trial court’s denial of Elyoussef’s
petition to reduce his child-support obligation.
Elyoussef makes several arguments that the trial court abused its discretion
when it denied his petition to reduce his child-support obligation because there was
insufficient evidence to support the trial court’s denial. We address each argument
in turn.
A. The trial court’s credibility determination.
Elyoussef initially argues that the trial court’s finding that he was not a
credible witness was insufficient by itself to support the trial court’s denial.
Elyoussef recognizes that the trial court was authorized to make that determination
and he does not argue on appeal that it should be overturned. Instead, he argues
that the credibility determination should not act as a complete bar to relief because
the other evidence “irrefutably demonstrate[d] a material and substantial change of
circumstances.” Elyoussef then compares the evidence in his case with the
evidence presented in a prior case appealed to this court, Friermood v. Friermood,
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25 S.W.3d 758, 760 (Tex. App.—Houston [14th Dist.] 2000, no pet.). According
to Elyoussef, the trial court also found that the appellant in Friermood was not a
credible witness, but still ordered a reduction in his child support payments. He
suggests this court should do the same thing here.
We do not consider the trial court’s credibility finding in isolation. Instead,
this finding shapes the way we view the evidence, the weight to be given to that
evidence, and the resolution of any conflicts in the evidence. See City of Keller v.
Wilson, 168 S.W.3d 802, 819, 822 (Tex. 2005). In addition, the fact that a
different trial court, in the exercise of its discretion, decided to reduce the amount
of child support despite the petitioner submitting unreliable evidence in support of
his request, does not mean every trial court faced with a possibly similar factual
scenario must do the same. We overrule this argument.
B. The trial court was not required to follow the child-support
guidelines in this modification proceeding.
Next, Elyoussef argues that the trial court abused its discretion when it
denied his request to modify the amount of his child-support obligation because, in
his view, the trial court did not follow the child-support guidelines and the
guidelines should govern the proceeding. We disagree because the legislature has
made it clear that the child-support guidelines are discretionary in a modification
proceeding. See Tex. Fam. Code § 156.402(a) (“The court may consider the child
support guidelines for single and multiple families under Chapter 154 to determine
whether there has been a material or substantial change of circumstances under this
chapter that warrants a modification of an existing child support order if the
modification is in the best interest of the child.”). Therefore, the trial court
committed no abuse of discretion if it chose not to follow the child-support
guidelines in resolving Elyoussef’s petition. See Friermood, 25 S.W.3d at 760
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(“As stated, the court’s adherence to the guidelines is only discretionary.”).
C. Sufficient evidence supports the trial court’s denial of Elyoussef’s
petition to modify his child-support obligation.
Finally, Elyoussef argues that the trial court abused its discretion when it
denied his petition to reduce his child-support obligation because “the record
supports a material change in circumstances.” More specifically, he asserts that his
“change in living situation, employment and employability, were discussed in
detail and supported by the record.” We disagree that Elyoussef has shown that he
met his burden of proof to obtain a modification.
Where, as here, the order that is sought to be modified is an agreed order that
does not comport with child-support guidelines, the trial court may modify the
order “only 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 § 156.401(a-1). In addition, the best interest of the child should remain
the trial court’s primary consideration in deciding whether to modify a child-
support obligation. Reagins, 524 S.W.3d at 761. The party requesting the
modification bears the burden to show such a change in circumstances. See In re
N.H.N., 580 S.W.3d at 445.
Elyoussef argues this issue as if the evidence in the record was undisputed
regarding his changed financial circumstances. Elyoussef also ignores the trial
court’s findings that he was not a credible witness, and his “testimony was unclear
and often contradictory.” Instead, while Elyoussef testified that his income was
much reduced from the point in time when the original divorce decree was signed,
we must presume that the trial court, based on Elyoussef’s lack of credibility and
contradictory testimony, disbelieved that evidence. See id. at 446. (“Although
Father offered evidence that his expenses increased and his earnings decreased
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after the order respecting child support was last modified in 2014, the trial court
apparently did not find Father’s evidence credible.”). For example, with respect to
the bank records Elyoussef introduced into evidence, the trial court could have
taken into account the fact that only one of the accounts was Elyoussef’s personal
account. It could also have considered the testimony by both Elyoussef and
Barbarwai, that they frequently relied on cash transactions to pay for their daily
living expenses and thus concluded the bank records failed to accurately tell the
complete story of Elyoussef’s financial situation. In addition, the trial court could
have disbelieved Elyoussef’s testimony that he simply walked away from his
flooring business and allowed a friend to take it over. See id. (“The trial court
presumably disbelieved Father’s evidence that he gave away the company and has
a reduced income.”). The evidence that Elyoussef was able to quickly obtain
significant sums of money when he needed it, also supports the determination that
Elyoussef’s financial situation had not materially and substantially changed. We
conclude that, on this record, and taking into account the trial court’s credibility
finding, Elyoussef has failed to show that the trial court clearly abused its
discretion when it found that he failed to demonstrate a material and substantial
change of circumstances as required by the section 156.401(a-1) of the Texas
Family Code.
Turning to the best interest of the child requirement, Elyoussef did testify
that he felt a reduction of his child-support obligation was in the children’s best
interest. The trial court, however, could have disbelieved that testimony and
instead believed Barbarawi’s testimony that a reduction in child support was not in
the children’s best interest. Barbarawi testified that the youngest child had medical
issues related to late development and was enrolled in a special needs program at
her school. Barbarawi also testified that the oldest child is gifted and talented and
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she participates in gymnastics, but Barbarawi had been forced to cancel her
involvement in other activities when Elyoussef stopped making his child support
payments. According to Barbarawi, both children would be negatively affected by
a reduction in child-support payments because participation in these activities was
in their best interest. The trial court presumably believed this testimony and
disbelieved Elyoussef’s. As a result, because there is evidence supporting the trial
court’s decision, we hold that the trial court did not abuse its discretion when it
found that Elyoussef failed to demonstrate that the requested child-support
modification would be in the children’s best interest.
We overrule Elyoussef’s sufficiency challenges to the trial court’s denial of
his petition to modify his child-support obligation.
IV. The trial court did not abuse its discretion when it admitted the
valuation report on Elyoussef’s flooring business.
Elyoussef also argues that the trial court abused its discretion when it
admitted the report valuing Prime Floors at $635,000. When Barbarawi sought to
admit the report, Elyoussef objected that the report was hearsay and was not
relevant because it was prepared during the original divorce proceeding. The trial
court initially sustained Elyoussef’s objection. Barbawai then responded to
Elyoussef’s objections by explaining (1) the report’s relevance to Barbarawi’s
intentional underemployment and unemployment allegations; and (2) that it was
filed as a business record and therefore fit within an exception to the hearsay rule.
At that point, the trial court asked Eloussef to clarify his objections and he once
again asserted the records were not relevant because they pre-dated the
modification proceeding and were hearsay. The trial court then changed its ruling,
overruled Elyoussef’s objections, and admitted the report into evidence.
The decision to admit or exclude evidence lies within the sound discretion of
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the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234
(Tex. 2007). A trial court exceeds its discretion if it acts in an arbitrary or
unreasonable manner or without reference to guiding rules or principles. Barnhart
v. Morales, 459 S.W.3d 733, 742 (Tex. App.—Houston [14th Dist.] 2015, no pet.)
(citing Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)). When
reviewing matters committed to the trial court’s discretion, a reviewing court may
not substitute its own judgment for that of the trial court. Id. Thus, the question is
not whether this court would have admitted the evidence. Rather, an appellate
court will uphold the trial court’s evidentiary ruling if there is any legitimate basis
for the ruling, even if that ground was not raised in the trial court. Id. Therefore,
we examine all bases for the trial court’s decision that are suggested by the record
or urged by the parties. Id.A party seeking to reverse a judgment based on evidentiary error must prove
that the error probably resulted in rendition of an improper judgment, which
usually requires the complaining party to show that the judgment turns on the
particular evidence excluded or admitted. Id. To determine whether evidentiary
error probably resulted in the rendition of an improper judgment, an appellate court
reviews the entire record. Id. (citing Interstate Northborough P’ship v. State, 66
S.W.3d 213, 220 (Tex. 2001)).
Assuming without deciding that the trial court erred when it overruled
Elyoussef’s objections, we conclude he has not shown that the error was reversible
because the judgment did not turn on this one piece of evidence. While Barbarawi
did allege that Elyoussef was intentionally unemployed or underemployed to avoid
paying his child support obligation and she sought to admit the report to prove that
allegation, the trial court did not make a finding on that basis in its Findings of Fact
and Conclusions of Law. Because Barbarawi requested that the trial court make
17
such a finding, and such a finding is mandatory if the trial court bases its decision
on intentional unemployment or underemployment, we conclude the trial court
rejected that allegation. See Iliff, 339 S.W.3d at 82 (requiring trial court to make
express finding of intentional unemployment or underemployment if it bases child
support on earnings potential rather than actual earnings); Vickery, 5 S.W.3d at 253(“In other words, where the trial court has been specifically requested to make a
particular finding in support of its judgment and it fails to do so, the failure is
tantamount to a refusal.”). As a result, we conclude that the judgment did not turn
on the erroneous admission of the business report and Elyoussef was not harmed
by its admission. We therefore overrule Elyoussef’s evidentiary issue.
CONCLUSION
Having addressed and overruled all arguments Elyoussef raised in this
appeal, we affirm the trial court’s order denying his petition to modify his child
support obligation.
/s/ Jerry Zimmerer
Justice
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
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