LaMar Carver Bunts v. Sensimone B. Williams ( 2019 )

Opinion issued May 23, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00643-CV
———————————
LAMAR CARVER BUNTS, Appellant
V.
SENSIMONE B. WILLIAMS, Appellee
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Case No. 2015-22036
MEMORANDUM OPINION
LaMar Carver Bunts (“Father”) and Sensimone Williams (“Mother”) are the
parents of a daughter (“Beth”) born in 2009.1 In 2015, Mother filed suit against
Father, requesting the trial court to adjudicate the parent-child relationship between
1
Beth is a pseudonym. See TEX. FAM. CODE § 109.002(d).
Father and Beth and to determine, inter alia, whether Mother was entitled to
retroactive child support against Father. Mother also requested that Father be
prohibited from taking Beth to Brazil, a country to which Father has ties. Following
a bench trial, the trial court signed a judgment adjudicating Father’s parentage,
awarding Mother retroactive child support, prohibiting Father from taking Beth to
Brazil, and addressing other issues related to conservatorship, possession, and
support. The trial court filed findings of fact and conclusions of law in support of its
judgment.
In four issues, Father challenges the trial court’s judgment. He contends that
the trial court abused its discretion by awarding Mother $52,508 in retroactive child
support and by prohibiting him from taking Beth to Brazil. He also complains that
the trial court should have filed additional findings of fact and conclusions of law.
We affirm.
Background
Mother and Father have never been married to one another nor have they ever
lived together. However, Mother and Father have known each other since they were
teenagers. They attended the same high school and the same college. They
maintained their relationship when each went to different graduate schools and then
began their professional careers.
2
At the time of Beth’s birth in September 2009, Mother lived in New Jersey,
and Father lived in California. Father was present at Beth’s birth, and he was named
as her father on her birth certificate. After the birth, Father continued to live in
California and would travel to see Beth in New Jersey, staying in Mother’s home
when he came to visit.
When Beth was six months old, Mother accepted a job in Virginia, and she
and Beth moved there. Father continued to travel from California to see Beth, staying
in Mother’s home when he visited. Father also maintained frequent telephone and
video contact with Beth.
Mother was primarily responsible for facilitating decisions relating to Beth’s
basic needs, such as her education and her medical care. Mother kept Father
informed about issues important to Beth’s development and well-being, and Father
agreed with the decisions and choices Mother made regarding Beth’s upbringing.
Father would attend medical appointments and school activities with Beth when he
could. They would all celebrate important events together, such as birthdays. In
short, during this time, Mother and Father amicably co-parented Beth.
As an infant, Beth was in daycare in New Jersey. She was also in daycare in
Virginia. In 2012, Mother researched preschools for Beth and found one that she
liked, the Congressional School. Mother and Father signed a contract with the
3
school, indicating that they were each individually liable for Beth’s tuition of
$20,000 to $22,000 per year.
In 2012, Beth was diagnosed with sensory processing disorder. To treat the
disorder, Beth was prescribed occupational therapy. Mother and Father agreed that
Beth should have occupational therapy, but Mother paid for the therapy. Beth met
her goals for the therapy, and it was discontinued in 2014.
In September 2014, Mother informed Father that he could no longer stay in
her home when he came to visit Beth. Mother would later testify that she made this
decision after Father stayed out all night while visiting Beth and would not answer
Mother’s calls. Father continued to visit Beth, but he stayed in a hotel when he came
to visit.
Mother learned in 2014 that her employer required her to move to Houston in
June 2015. Father was informed of the upcoming move. While still living in
Virginia, Mother began to research and visit possible schools for Beth in Houston.
Father participated in visiting the schools, and the parents agreed on a school for
Beth in Houston. Once in Houston, Beth again needed occupational therapy.
Up to this point, there had never been a court order adjudicating Father’s
paternity. Nor had there been a court order requiring Father to provide financial
support for Beth. However, since Beth’s birth, Father had provided periodic financial
support for certain of Beth’s needs. When Beth was born, Father gave Mother $5,000
4
that he had received from his insurance company. Father also provided secondary
health insurance to Beth from 2009 until 2013.
Father on occasion paid for Beth’s daycare in New Jersey and in Virginia, but
Mother paid for most of the daycare costs. Father also paid school tuition at the
Congressional School. Father offered evidence at trial indicating that his tuition
payments for several years totaled around $60,000.
In her trial testimony, Mother stated that Father’s financial support was
discretionary, given only when Father chose to provide it and only for expenses he
chose to cover. If Father did not pay for an expense associated with Beth’s care, then
Mother paid for it. Mother described Father’s financial support as sporadic and
unreliable. She said that Father never gave her money to cover costs associated with
Beth’s basic daily living expenses, such as food or shelter.
In April 2015, Mother filed suit against Father in Harris County, Texas.
Mother sought an adjudication of Father’s parentage and requested orders relating
to issues of conservatorship, possession, and child support, including retroactive
child support. Father filed suit against Mother in Virginia, seeking joint custody of
Beth. Mother and Beth moved to Houston in early June 2015 as planned. Ultimately,
it was determined that the Harris County court had jurisdiction over the parents’
dispute.
5
Before trial, the parties engaged in mediation, and temporary orders were
signed in February 2016. The orders required Father to pay child support and to
reimburse Mother for the cost of Beth’s health insurance premiums.
At the beginning of trial, the trial court accepted, among others, the following
stipulations of the parties:
• The parents will be Beth’s joint managing conservators;
• Mother will have the exclusive right to designate Beth’s primary residence
and the right to receive child support from Father;
• Father will have standard visitation “with expansions”;
• Father’s net monthly resources exceed the maximum monthly amount for
guideline child support at $8,550; and
• Father should pay Mother prospective monthly child support of $1,710
pursuant to the Texas Family Code guidelines.
Among the disputed issues remaining to be tried were the following:
• Whether retroactive child support should be awarded and, if so, how much.
• Whether passport controls and travel restrictions should be imposed with
respect to Beth.
A two-day bench trial was held in July 2016. The trial court heard the
testimony of Mother, Father, and Beth’s current occupational therapist.
Documentary evidence was also offered by both parents.
6
The trial court signed a final judgment on May 16, 2017, adjudicating Father’s
parentage of Beth. Among its provisions, the judgment also awarded Mother
$52,508.00 in retroactive child support as follows:
The Court finds that no order adjudicating [Father] or ordering any
support for the minor child was in place until February 2016.
The Court finds that the parties agreed and stipulated that throughout
the child’s life, [Father’s] average monthly income exceeded the
statutory cap and that the parties agreed that periodic monthly child
support going forward would be set at $1,170.00 as set forth herein.
The Court further finds that throughout the child’s life, [Father] earned
at the statutory cap set forth in the Texas family code prior to the
September 1, 2013, amendment and after.
The Court further finds that since February 2016, [Father] has paid
periodic child support and reimbursed [Mother] for the cost of covering
the child on her health insurance policy.
The Court further finds that [Father] knew he was the father from the
date of the child’s birth and the Court finds that his obligation had
support been ordered would have been $115,590.00 in child support;
and, $15,120.00 in reimbursement for the health insurance premium
carried by [Mother].
The Court also finds that [Father] did provide actual support in the
amount of $78,202.00 since the child’s birth.
The Court also finds that in light of [Father’s] education, employment
history and assets, the payment of retroactive child support will not
place an undue hardship on him.
Accordingly, the Court, finds it is in the best interest of the child,
THEREFORE IT IS ORDERED that [Father] pay to [Mother]
retroactive child support in the amount of Fifty-Two Thousand Five
Hundred Eight & No/100 Dollars ($52,508.00), such amount
7
representing the difference between the actual amounts paid and the
amount that could have been ordered.
In its separately filed findings of fact and conclusions of law, the trial court
supported the award of retroactive child support as follows:
1.4 Findings Supporting Award of Retroactive Child Support
Prior to this lawsuit [Father] had not been previously ordered to pay
support for the child.
Prior to this lawsuit [Father] had not been party to a suit in which
support had been ordered.
1.5 Findings Supporting Amount of Retroactive Child Support
[Father] was aware he was the child’s father from her birth and never
denied that he was.
It was undisputed that [Father] owns property in California, Arizona
and Brazil.
[Father] paid the agreed temporary child support amount of $1,710 per
month after mediation in January 2016, paid his attorneys and signed a
residential lease obligating him to pay $2,300 per month.
[Father] paid reimbursement to [Mother] for health insurance during
the temporary orders.
No evidence was offered that [Father] was unable to meet his financial
obligations during the temporary orders at any other relevant time.
No evidence was presented that [Father] has established or contributed
to any educational fund or trust.
[Mother] has established a college savings fund and trust for the child.
It was undisputed that [Father] earned at the statutory cap pursuant to
the guidelines in the Family Code from the time of the child’s birth.
8
[Father] is highly educated and admitted that he is confident in his
employability.
Prior to the temporary order issued by [the trial court] [Father] did not
regularly reimburse [Mother] for health expenses for the child not
covered by insurance.
In its judgment, the trial court also enjoined the parents from taking Beth to
certain countries, including Brazil, a country to which father has business and
personal ties. Regarding the travel injunction, the judgment provides:
[Mother] and [Father] may travel internationally with the child and both
[Mother] and [Father] are enjoined and IT IS ORDERED that both
[Mother] and [Father] shall not take the child to:
1) Any country which is not a signatory member of The Hague
Convention on International Abduction;
2) The following Hague Convention signatory countries who have
demonstrated patterns of non-compliance with The Hague Convention
in the areas of judicial and law enforcement performance—Brazil;
3) The following Hague Convention signatory countries in which a
Hague Convention return order has not been enforced against the
fleeing parent: Brazil, Romania and Ukraine.
4) The following Hague Convention signatory countries that have more
than 8 return applications pending and have been pending for more than
5 years: Brazil.
Supporting the travel restriction to Brazil, the trial court also made the
following findings of fact:
9
1.7. Findings Supporting Court’s Restriction [of] Child’s Travel
The evidence established that [Father] has a substantial affinity for
Brazil.
The evidence established that [Father] has traveled there extensively.
The evidence established that [Father] owns property in Brazil.
The Court believed the testimony that [Father] has a network including
business contacts and a longstanding affiliation with a Brazilian music
group.
The Court found credible [Mother’s] concern that it would be very
difficult to get the child back should [Father] overstay a visit to Brazil
with the child.
Father now appeals the judgment. Specifically, he challenges the trial court’s
award of retroactive child support and the imposition of the travel restriction to
Brazil. He also asserts that the trial court should have filed supplemental findings of
fact and conclusions of law.
Retroactive Child Support
In his first two issues, Father contends that the trial court abused its discretion
in awarding retroactive child support to Mother, and he asserts that the evidence was
not sufficient to support the amount of retroactive child support awarded.
A. Standard of Review
We review a trial court’s decision awarding retroactive child support under an
abuse of discretion standard. Young v. Terral, No. 01-14-00591-CV, 2015 WL
8942625, at *2 (Tex. App.—Houston [1st Dist.] Dec. 8, 2015, no pet.) (mem. op.)
10
(citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)). A trial court abuses
its discretion when it acts in an arbitrary or unreasonable manner or when it acts
without reference to any guiding principles. Worford, 801 S.W.2d at 109.
When applying an abuse-of-discretion standard, challenges to the legal and
factual sufficiency of the evidence are not independent grounds of error but are
factors used in assessing whether the trial court abused its discretion. Ayala v. Ayala,
387 S.W.3d 721, 726 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Stamper v.
Knox, 254 S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2008, no pet.). “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 judgment.” Ayala, 387 S.W.3d 721 at
726. An abuse of discretion does not occur when the trial court’s decision is based
on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).
To determine whether a trial court abused its discretion because the evidence
is legally or factually insufficient to support its decision, we consider (1) whether
the trial court had sufficient evidence upon which to exercise its discretion and (2)
whether it erred in its application of that discretion. See Bush v. Bush, 336 S.W.3d
722, 729 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Moroch v. Collins, 174
S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). We conduct the applicable
sufficiency review when considering the first prong of the test. See Bush, 336
S.W.3d at 729; Moroch, 174 S.W.3d at 857. We then determine whether, based on
11
the evidence, the trial court made a reasonable decision. See In re S.T., 508 S.W.3d
482, 489 (Tex. App.—Fort Worth 2015, no pet.); Moroch, 174 S.W.3d at 857.
B. Entitlement to Retroactive Child Support
Once parentage is established, “the court may order retroactive child support
as provided by Chapter 154.” TEX. FAM. CODE § 160.636(g). Family Code Section
154.009(a) provides that “the court may order a parent to pay retroactive child
support if the parent: (1) has not previously been ordered to pay support for the child;
and (2) was not a party to a suit in which support was ordered.” Id. § 154.009(a).
Here, the trial court found—and it is undisputed—that these two criteria are satisfied.
In his first issue, Father intimates that the trial court abused its discretion in
awarding retroactive child support because he provided financial support to Beth in
the context of a co-parenting relationship with Mother in which there was an
understanding of how they would parent and provide for Beth without the need of a
court order. Father points out that Mother never sought court-ordered support before
their relationship became acrimonious in 2014. Father cites evidence showing that,
until their relationship became problematic, he and Mother had harmoniously co-
parented Beth since her birth in 2009. He points to specific evidence of financial
support that he provided to Beth without a court order. Father claims that there had
been no need for court-ordered child support because he and Mother “successfully
worked together to parent and provide support and necessities” for Beth. Based on
12
this evidence, Father appears to make an estoppel-like argument that it was an abuse
of discretion for the trial court could to award retroactive child support under the
circumstances of his co-parenting relationship with Mother.
We agree with Father that retroactive child support is not mandatory; rather,
it is based on factual determinations made by the trial court based on the evidence.
See Garza v. Blanton, 55 S.W.3d 708, 710 (Tex. App.—Corpus Christi 2001, no
pet.). But we disagree that any understanding that the parents had about Father’s
financial contributions in the context of their co-parenting relationship or Mother’s
acceptance of support without a court order necessarily precluded the trial court from
exercising its discretion to award retroactive child support. Cf. Office of Attorney
Gen. of Tex. v. Scholer, 403 S.W.3d 859, 863 (Tex. 2013) (holding that equitable
estoppel cannot be used as affirmative defense in child-support enforcement
actions). Instead, as discussed infra, the Family Code guides the trial court’s
discretion in determining what, if any, retroactive support to order. See TEX. FAM.
CODE § 154.131.
We overrule Father’s first issue.
C. Amount of Retroactive Support
The trial court’s judgment states that the court found it was in Beth’s best
interest for Father to pay Mother $52,508 in retroactive child support. The judgment
reveals that this amount was calculated by taking $115,590—the amount the trial
13
court determined Father would have paid in child support had there been a court
order in place—adding $15,120 in health insurance premiums Mother paid for Beth,
and then subtracting $78,202, the amount of actual support the trial court found
Father had provided. In his second issue, Father asserts that the trial court abused its
discretion in calculating “the amount and duration” of the $52,508 retroactive child
support award because it is not supported by sufficient evidence.
Applicable Legal Principles
When ordering retroactive child support, the trial court “shall use the child
support guidelines provided by Chapter 154, together with any relevant factors.”
TEX. FAM. CODE 160.636(h). Family Code Section 154.131(a) provides that the child
support guidelines are intended to guide the court in determining the amount of
retroactive child support, if any, to be ordered. TEX. FAM. CODE § 154.131(a). In
determining whether to order retroactive child support, the court must “consider the
net resources of the obligor during the relevant time period” and whether:
(1) the mother of the child had made any previous attempts to notify the
obligor of his paternity or probable paternity;
(2) the obligor had knowledge of his paternity or probable paternity;
(3) the order of retroactive child support will impose an undue financial
hardship on the obligor or the obligor’s family; and
(4) the obligor had provided actual support or other necessaries before
the filing of the action.
14
Id. § 154.131(b)(1)–(4); see id. § 154.123(b)(1)–(17) (listing nonexclusive factors
court may consider in applying guidelines). Section 154.131(b) does not bind the
trial court to the listed factors in determining retroactive child support but is merely
intended to guide the trial court in determining the amount of retroactive child
support. In re J.H., 264 S.W.3d 919, 924–25 (Tex. App.—Dallas 2008, no pet.).
With these principles in mind, we determine whether the trial court properly
exercised its discretion by ordering Father to pay $52,508 in retroactive child
support.
Father was aware of his paternity
In her petition, Mother requested retroactive child support “from the birth of
the child to the present.” The trial court made the undisputed finding that Father
“was aware he was the child’s father from her birth and never denied that he was.”
See TEX. FAM. CODE § 154.131(b)(2).
Father’s net resources and the child support guidelines
The record shows that the trial court considered the child support guidelines
and Father’s net resources in ordering the retroactive support. See id. § 154.131(a)–
(b). The trial court found that it “was undisputed that [Father] earned at the statutory
cap pursuant to the guidelines in the Family Code from the time of [Beth’s] birth.”
The trial court also found that the parties had stipulated that Father’s net monthly
resources were set at $8,550 because his income exceeds the maximum monthly
15
amount for guideline child support. See id. § 154.125(a). Based on this amount,
under the guidelines, the parties stipulated that Father would pay $1,710 in monthly
child support. See id. § 154.125(b).
Father challenges the finding in the trial court’s judgment that states the
amount of court-ordered support he would have paid since Beth’s birth was
$115,590. Father contends that the evidence does not support this amount. He
acknowledges that Mother presented evidence breaking down year-by-year how
much support Father would have paid under the statutory guidelines from Beth’s
birth until February 2016, when Father began paying child support under the
temporary orders. Mother’s evidence showed that Father would have paid $119,250
in court-ordered child support, not $115,590. In other words, the trial court’s finding
of $115,590 is $3,660 less than what Mother’s evidence showed the court-ordered
support would have been under the child support guidelines. Thus, the evidence
offered by Mother was some evidence of a substantive and probative character to
support the trial court’s award of retroactive support. See Ayala, 387 S.W.3d 721 at
726. And, even assuming $115,590 is inaccurate, the finding benefitted Father
because it ultimately reduced the amount of retroactive support the court ordered
him to pay. See In re Sanders, 159 S.W.3d 797, 802 (Tex. App.—Amarillo 2005, no
pet.) (noting that, because monthly amount of support parent would have paid, given
16
evidence and child-support guidelines, was greater than amount of ordered
retroactive support, appellate court did not see how father was “harmed” by award).
Father also asserts that no evidence was presented to support the trial court’s
determination that he must reimburse $15,200 in health insurance premiums to
Mother. The evidence showed that Mother has provided health insurance for Beth
since her birth and that Mother pays $228 per month for Beth’s health insurance.
Using this amount, Mother’s cost of health insurance premiums for Beth from her
birth until the entry of the temporary orders would have been over $17,000. We
conclude this is some evidence of a substantive and probative character to support
the trial court’s award of health insurance premiums. See Ayala, 387 S.W.3d 721 at
726; see also Hontanosas v. Hontanosas, No. 13-08-00309-CV, 2012 WL 432642,
*5 (Tex. App.—Corpus Christi Feb. 9, 2012, no pet.) (mem. op.) (upholding
judgment ordering father to reimburse mother for health insurance premiums she
paid for child as part of retroactive award).
Credit for Father’s past financial support
The trial court’s judgment also indicates that the court considered Section
154.131(b)’s fourth factor: whether Father provided financial support to Beth. See
Tex. FAM. CODE § 154.131(b)(4) (directing courts to consider actual support
provided when ordering retroactive support). In the judgment, the trial court found
that Father provided $78,202 in actual support to Beth since her birth. The trial court
17
calculated the $52,508 in retroactive child support by subtracting the actual support
($78,202) it found Father provided from the sum of the amount of the court-ordered
child support Father would have paid under the guidelines ($115,590) plus the health
insurance premiums Mother paid ($15,120). In other words, this equation: ($115,590
+ $15,120) – $78,202 = $52,508.
Father contends that he should have been given credit for more than $78,202
in actual support. He points to his documentary evidence admitted at trial showing
that he paid $81,078.43 in actual support. The evidence consists of a detailed
itemized summary of Beth’s expenses Father paid. The total at the bottom of the
summary is $81,078.43. Supporting the items listed in the summary, Father provided
his bank statements and credit card records.
Father asserts that the summary lists only expenses that he paid for four years
before the suit was filed in April 2015; that is, he claims that he only offered evidence
of expenses he paid dating back to April 2011. He asserts that he paid for more than
$81,078.43 in expenses because he also paid for some of Beth’s expenses before
April 2011. He implies that those expenses are not in the list. However, a review of
Father’s itemized summary and supporting documentation reveals that the
$81,078.43 includes expenses predating April 2011. For example, the summary
includes (1) $5,546.43 Father paid to Mother for “reimbursement for infant doctor
treatment” on March 2, 2010; (2) $1,320.00 Father paid for one month of daycare
18
on March 8, 2010; and (3) three payments of $1,390 (totaling $4,170) for daycare
Father paid in January, February, and March 2011. And there are other pre-April
2011 expenses Father listed as well.
Father also points out that, in addition to the $81,078.43, the evidence showed
that he provided “secondary” health insurance for Beth from 2009 until 2013.
However, the evidence showed that Mother provided Beth’s primary insurance.
Father points out that he incurred expense in traveling from his home in California
to New Jersey, and then to Virginia, to visit Beth. But Mother testified that Father
combined many of these trips with business trips that he had in the area. Father
testified that he had spent 565 nights with Beth since her birth and before the suit
was filed. However, the evidence showed that, until September 2014, father stayed
at Mother’s home when visiting Beth, saving the expense of a hotel.
In short, Father complains that the trial court did not give him “full credit” for
the $81,078.43 in support reflected in his documentary evidence. When determining
retroactive support, trial courts are not bound by the factors listed in Section
154.131(b), see In re J.H., 264 S.W.3d at 924–25, including the factor regarding
actual support provided to the child, see In re A.B., 368 S.W.3d 850, 860 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) (determining that trial court was not
required to credit past support provided when determining retroactive support); In
re Sanders, 159 S.W.3d at 802 (same). Instead, the courts are directed to “consider”
19
the factors in ordering retroactive support. See TEX. FAM. CODE § 154.131(b). Here,
the record shows that the trial court not only considered past support provided by
Father, it also gave him credit for past financial support.
In its findings of fact supporting the retroactive child support, we note that the
trial court also found that Father “did not regularly reimburse [Mother] for health
expenses for the child not covered by insurance.” Mother testified that she spent
$19,439.23 for Beth’s medical expenses not covered by insurance. She said that
Father had not given her any money for those expenses. She testified that she wanted
Father to reimburse her for half of those expenses. In its discretion, the trial court
may have factored that into how much credit it gave Father for his past financial
support. Cf. id. § 154.123(b)(12) (providing that, in determining whether to deviate
from child support guidelines, court may consider “payment of uninsured medical
expenses”).
Also, Mother testified that the support Father provided was sporadic and
unreliable. He paid for expenses at his discretion when he felt he could afford it. In
contrast, Mother paid for Beth’s daily living expenses and never received support
from Father for those costs. The evidence showed that, if Father chose not to pay for
an expense, then Mother was left to cover it.
In short, the trial court was not required to credit the full amount of past
financial support Father claimed to have provided. Rather, the court had discretion
20
to weigh the evidence and determine what amount, if any, to credit. See In re A.B.,
368 S.W.3d at 860.
Undue hardship
Father also claims that the award of retroactive child support “would impose
an undue hardship” on him. See TEX. FAM. CODE § 154.131(b)(3). He points to
evidence showing that, at the time of trial, he was unemployed. Father testified that
he had quit his job with an education services company, for which he had been
employed for four years, because his employer had requested that he move to Iowa.
Father testified that he had moved to Houston and was renting an apartment. Father
points out, with respect to prospective child support, he has agreed to pay the
maximum guideline child support.
The trial court made findings of fact indicating that it considered whether the
retroactive child support would be an undue hardship to Father. Specifically, the trial
court made the following undisputed findings of fact:
[Father] paid the agreed temporary child support amount of $1,710 per
month after mediation in January 2016, paid his attorneys and signed a
residential lease obligating him to pay $2,300 per month.
[Father] paid reimbursement to [Mother] for health insurance during
the temporary orders.
No evidence was offered that [Father] was unable to meet his financial
obligations during the temporary orders at any other relevant time.
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The trial court also found, “It was undisputed that [Father] owns property in
California, Arizona and Brazil.” Father acknowledged that he owns five rental
properties, but he indicated that the properties are not making any money and have
negative values.
The court further found that “[Father] is highly educated and [he] admitted
that he is confident in his employability.” Father testified that he attended Harvard
and then Stanford business school. The evidence indicated that Father has a strong
employment history, showing that he earned $284,960 in 2014 and $323,264 in
2015. Father testified, “I’ve got skills and a history and record and experience that
people would want. So, I feel confident in my ability.”
Regarding the undue hardship consideration, the trial court also made the
following conclusion of law: “It is not an abuse of discretion to deny a request for
relief under the ‘hardship’ rubric without the obligor’s presenting specific evidence
at the hearing of his inability to provide for his or his family’s ‘needs’ as a result of
the retroactive support.” See In re A.B., 368 S.W.3d 856–57. Here, Father testified
that it was “very hard” to agree to maximum guideline child support when he did
not have a job, but he did not specifically testify how paying retroactive child support
would be a hardship for him. And, given his employment history and education, even
Father was confident of his employability. Thus, the evidence was sufficient for the
22
trial court to have determined that retroactive child support would not be an undue
hardship on Father.
Retroactive support awarded less than amount due for preceding four years
Section 154.131(c) provides that
it is presumed that a court order limiting the amount of retroactive child
support to an amount that does not exceed the total amount of child
support that would have been due for the four years preceding the date
the petition seeking support was filed is reasonable and in the best
interest of the child.
TEX. FAM. CODE § 154.131(c).
Father acknowledges that the amount of support he would have paid under the
guidelines for the four years preceding the filing of Mother’s petition was $76,200.
The amount of retroactive child support awarded by the trial court was $52,508,
which is $23,692 less than what Father would have paid under the guidelines.
Mother contends that, under Section 154.131(c), it is presumed that the trial court’s
judgment—limiting the amount of retroactive support to less than what Father would
have paid for the four years preceding the filing of the suit—was reasonable and in
Beth’s best interest. See id.
Father disagrees. He asserts that the “duration” of the retroactive child support
award exceeds what is permitted by Section 154.131(c). He contends that, in
calculating the amount of retroactive child support, the trial court should have
considered only what Father would have paid in support under the guidelines for the
23
four years preceding the filing of Mother’s petition less the amount of support he
provided. He asserts that, under this calculation, he would not owe any retroactive
child support because his evidence showed that he provided $81,078.43 in actual
support in the four years preceding the filing of the suit.2 However, as discussed, a
review of Father’s evidence shows that some of the expenses comprising the
$81,078.43 were expenses paid by Father before the four-year period preceding the
filing of the suit. Even presuming that the support he provided exceeds the $76,200
in support Father would have paid, Father does not recognize that the trial court was
not required to credit him with the amount of support he provided in exercising its
discretion to award retroactive support. See In re A.B., 368 S.W.3d at 860; In re
Sanders, 159 S.W.3d at 802.
2
The Section 154.131(c) presumption can be rebutted by evidence showing that the
obligor knew or should have known that he was the father of the child for whom
support is sought, and the obligor sought to avoid the establishment of a support
obligation to the child. Id. § 154.131(d). Father contends that the rebuttal does not
apply because he acknowledged that he was Beth’s father since her birth, and he
never sought to avoid the establishment of a support obligation. In other words, he
argues that the trial court was limited to considering only what he would have paid
for the relevant four-year period because the rebuttal provision does not apply.
However, Father misinterprets the rebuttal provision. The provision has been
applied in contexts in which the obligee parent has been awarded an amount of
retroactive child support greater than what the obligor parent would have paid
during the relevant four-year period. See, e.g. In re A.B., 368 S.W.3d 850, 860 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). That is not what happened here. Mother
was awarded less than the amount that Father would have paid during the four-year
period. That is the reason the rebuttal provision is not applicable here.
24
Courts are required to interpret a statute by applying the plain meaning of the
words used in the statute. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex.
2015). Here, the plain language of Section 154.131(c) states that “a court order
limiting the amount of retroactive child support to an amount that does not exceed
the total amount of child support that would have been due for the four years
preceding the date the petition seeking support was filed” is presumed to be
“reasonable and in the best interest of the child.” TEX. FAM. CODE § 154.131(c)
(emphasis added). The focus of the statute is on the amount of the retroactive award
as compared to the amount that the obligor parent would have been ordered to pay
under the guidelines had there been an order. Because the amount of the retroactive
child support awarded by the trial court was limited to an amount that did not exceed
the amount that Father would have paid in the four years preceding the suit, Father
has not shown that the trial court did not adhere to the intent of Section 154.131(c)
in ordering retroactive child support.
We conclude that Father has not shown that the trial court acted in an arbitrary
or unreasonable manner or without reference to any guiding principles in
determining whether to award retroactive child support and in determining the
amount of the award. Here, the record shows that the trial court considered the
Section 154.131 factors, and there was sufficient evidence to support the trial court’s
25
determinations under those factors. Accordingly, we hold that the trial court did not
abuse its discretion in ordering Father to pay retroactive child support of $52,508.
We overrule Father’s second issue.
Additional Findings of Fact
In his third issue, Father complains that the trial court did not issue additional
findings of fact. Although Father’s request for additional findings of fact is not
contained in the record, it is undisputed that the request was filed in the trial court.
Texas Rule of Procedure 298 states, “The court shall file any additional or
amended findings and conclusions that are appropriate.” TEX. R. CIV. P. 298.
“Additional findings are not required if the original findings of fact and conclusions
of law ‘properly and succinctly relate the ultimate findings of fact and law necessary
to apprise [the party] of adequate information for the preparation of his or her
appeal.’” In re R.D.Y., 51 S.W.3d 314, 322 (Tex. App.—Houston [1st Dist.] 2001,
pet. denied) (quoting In re Marriage of Morris, 12 S.W.3d 877, 886 (Tex. App.—
Texarkana 2000, no pet.)).
On appeal, Father asserts,
While the trial court’s original findings offered generalized statements
reflecting the factual basis of its decision to award retroactive child
support, findings which [Father] challenges here on appeal, the trial
court offered no findings demonstrating how the trial court reached its
decision, further demonstrating [Father’s] claim that the decision is
arbitrary and fails to abide by any guiding rules or principles.
26
Father complains that the trial court did not make “additional findings which
establish how the trial court arrived at its final calculations.” However, the
determinations made by a trial court under Section 154.131’s guidelines, evaluating
whether a parent should pay retroactive child support, are evidentiary
determinations. See J.A. v. Blount, No. 01-03-00679-CV, 2004 WL 1472166, at *2
(Tex. App.—Houston [1st Dist.] July 1, 2004, no pet.) (mem. op.). A trial court is
not required to make additional findings that relate merely to evidentiary matters or
that are aimed at tying down the court’s reasoning rather than its conclusions. See In
re S.E.K., 294 S.W.3d 926, 930 (Tex. App.—Dallas 2009, pet. denied); see also
Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex. App.—Houston [1st Dist.] 1995, writ
denied) (holding only necessary finding was ultimate issue—whether division of
marital estate was just and right—rather than evidentiary findings as to parties’
relative earning capacities, investments of separate property in community
residence, or cruelty). Thus, the trial court was not required to specify its evidentiary
determinations or detail its reasoning for making the award.
In addition, the failure to make additional findings does not require a reversal
if the record indicates Father did not suffer injury. See In re R.D.Y., 51 S.W.3d at
322. Father must show the trial court’s refusal to file the requested additional
findings caused the rendition of an improper judgment. See id. If the refusal to file
additional findings did not prevent Father from adequately presenting his argument
27
on appeal, there is no reversible error. See id. Generally, an appellant is harmed if,
under the circumstances of the case, he must guess at the reason the trial court ruled
against him. See Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 614 (Tex.
App.—Dallas 2003, pet. denied).
Here, Father was able to adequately brief his arguments to this Court. The trial
court’s findings in its judgment and in its separately filed findings of fact show that
the trial considered the Section 154.131 guidelines. And the trial court made findings
relevant to the guidelines. The trial court’s judgment also sets out the precise
monetary figures used to calculate the amount of retroactive child support ordered.
Father did not have to guess at the basis underlying the award. Thus, Father has not
established that the trial court’s refusal to make additional findings prevented him
from adequately presenting his case on appeal. See In re R.D.Y., 51 S.W.3d at 322.
Father’s third issue is overruled.
Brazil Travel Restriction
In his fourth issue, Father challenges the trial court’s travel restriction,
enjoining him from taking Beth to Brazil. He contends that the evidence was not
sufficient to support the restriction.
A. Standard of Review
We review the trial court’s determination regarding the travel restriction for
abuse of discretion. See Elshafie v. Elshafie, No. 13-10-00393-CV, 2011 WL
28
5843674, at *5 (Tex. App.—Corpus Christi Nov. 22, 2011, no pet.) (mem. op.); Boyo
v. Boyo, 196 S.W.3d 409, 424 (Tex. App.—Beaumont 2006, no pet.). As stated, an
abuse of discretion occurs when a court acts without reference to any guiding rules
and principles or in an arbitrary and unreasonable manner. Worford, 801 S.W.2d at
109.
B. Analysis
Family Code Section 153.501(a) provides,
In a suit, if credible evidence is presented to the court indicating a
potential risk of the international abduction of a child by a parent of the
child, the court, on its own motion or at the request of a party to the
suit, shall determine under this section whether it is necessary for the
court to take one or more of the measures described by Section 153.503
to protect the child from the risk of abduction by the parent.
TEX. FAM. CODE § 153.501(a). One of the measures listed in Section 153.503 permits
a trial court to deny a child the ability to travel abroad. See id. § 153.503(4).
Identifying “credible evidence” indicating a “potential risk” of international
abduction, the trial court made the following findings of fact:
The evidence established that [Father] has a substantial affinity for
Brazil.
The evidence established that [Father] has traveled there extensively.
The evidence established that [Father] owns property in Brazil.
The Court believed the testimony that [Father] has a network including
business contacts and a longstanding affiliation with a Brazilian music
group.
29
The Court found credible [Mother’s] concern that it would be very
difficult to get the child back should [Father] overstay a visit to Brazil
with the child.
At trial, the trial court heard evidence regarding Father’s ties with Brazil.
Mother testified that Father “has a lot of connections in Brazil. He is quite active
with a Brazilian musical group. . . . So, typically he would travel to Brazil and then
sometimes he’d stay for a month.” The evidence also showed that Father owns a
home in Brazil.
When asked why she was concerned about Father taking Beth to Brazil,
Mother responded, “Because [Father] has a home there. He also has an established
life there[.]” Mother also testified that she is concerned that, if Father overstays his
visit or decides to stay with Beth in Brazil, “it would be very difficult for me to get
her back.”
Father testified that he has no intention “to abscond with [Beth] to Brazil” and
stated that he has never threatened to do so. However, Father’s testimony also
confirmed his strong ties with Brazil. He testified that he wants to take Beth to visit
Brazil because “it’s a big part of [his] life” and has been a big part of his life for “two
decades.” Father testified that he speaks Portuguese, has taught Beth Portuguese
words, and “always expected that [Beth] would learn Portuguese.” Thus, evidence
was presented supporting the trial court’s findings.
30
When the record supports a determination that “credible evidence” indicates
a “potential risk” of international abduction, the trial court must then “determine
under [Section 153.501(b)] whether it is necessary for the court to take one or more
of the measures described by Section 153.503 to protect the child from the risk of
abduction by the parent.” Id. § 153.501(a).
Section 153.501(b) provides,
In determining whether to take any of the measures described by
Section 153.503, the court shall consider:
(1) the public policies of this state described by Section 153.001(a)3
and the consideration of the best interest of the child under Section
153.0024;
(2) the risk of international abduction of the child by a parent of the
child based on the court’s evaluation of the risk factors described
by Section 153.502;
(3) any obstacles to locating, recovering, and returning the child if
the child is abducted to a foreign country; and
(4) the potential physical or psychological harm to the child if the
child is abducted to a foreign country.
Id. § 153.501(b).
3
Section 153.001(a) states that it is the public policy of the state to assure that
children have frequent contact with parents who act in the best interest of the child;
to provide a safe, stable, and nonviolent environment for the child; and to encourage
parents to share in the rights and duties of raising their child after separation or
divorce. See TEX. FAM. CODE § 153.001(a).
4
Section 153.002 provides that the best interest of the child shall always be the
primary consideration in determining issues of conservatorship, possession, and
access. See id. § 153.002.
31
Here, the record shows that the trial court focused on the third factor: “any
obstacles to locating, recovering, and returning the child if the child is abducted to
[Brazil].” See id. 153.501(b)(3). In issuing the travel restriction, the trial court
recognized in its judgment that Brazil is a signatory to the Hague Convention that
has “demonstrated patterns of non-compliance with The Hague Convention in the
areas of judicial and law enforcement performance.” The court also recognized that
Brazil is a Hague Convention signatory country in which “a Hague Convention
return order has not been enforced against the fleeing parent” and that Brazil has
“more than 8 return applications pending and [that have] been pending for more than
5 years.”
Father asserts that there was “no evidence to support the finding that Brazil
has a history of not enforcing child custody orders or delayed applications in
returning a child.” However, the trial court’s findings are legislative facts of which
the trial court could take judicial notice sua sponte. See In re Sigmar, 270 S.W.3d
289, 301–02 (Tex. App.—Waco 2008, orig. proceeding). “Legislative facts . . . are
not normally the objects of evidentiary proof. As to them, judicial notice instead of
record evidence is the rule rather than the exception, and indisputability is not
required to justify judicial notice.” In re Graves, 217 S.W.3d 744, 750 (Tex. App.—
Waco 2007, orig. proceeding) (quoting 1 Steve Goode et al, TEXAS PRACTICE
SERIES: GUIDE TO THE TEXAS RULES OF EVIDENCE § 201.2 (3d ed. 2002)). “Evidence
32
regarding the legal practices and procedures of a foreign country are legislative
facts” subject to judicial notice. In re Sigmar, 270 S.W.3d at 302 (citing Rodriquez
v. State, 90 S.W.3d 340, 360 (Tex. App.—El Paso 2001, pet. ref’d)).
Although the rules of evidence provide a method for parties to request a court
to take judicial notice of laws of a foreign country, see TEX. R. EVID. 203, “facts
regarding another country’s compliance with the Hague Convention on the Civil
Aspects of International Child Abduction . . . are legislative facts about which a trial
or appellate court may take judicial notice without prompting by the parties,” In re
Sigmar, 270 S.W.3d at 302; Chen v. Hernandez, No. 03-11-00222-CV, 2012 WL
3793294, at *13 (Tex. App.—Austin Aug. 28, 2012, pet. denied) (mem. op.)
(agreeing that compliance with Hague Convention is legislative fact that can be
judicially noticed)). Thus, the trial court was permitted to take judicial notice of
Brazil’s noncompliance with the Hague Convention. See In re Sigmar, 270 S.W.3d
at 301–02; see also Dutton v. Dutton, 18 S.W.3d 849, 856 (Tex. App.—Eastland
2000, pet. denied) (“This court may take judicial notice, even if no one requested the
trial court to do so and even if the trial court did not announce that it would do so.”);
Trujillo v. State, 809 S.W.2d 593, 595–96 (Tex. App.—San Antonio 1991, no pet.)
(stating that trial court “could have easily rejected any inadmissible testimony by the
school teacher and taken judicial notice that Edgewood High School is an accredited
school by the state education agency”).
33
“The website for the State Department provides helpful resources regarding
international travel and the pertinent practices and procedures of other nations.” In
re Sigmar, 270 S.W.3d at 303. The State Department’s report on international child
abduction identifies Brazil as a non-compliant signatory to the Hague Convention
on the Civil Aspects of International Child Abduction and provides details of its
noncompliance. U.S. DEP’T OF STATE, ANN. REP. ON INT’L CHILD ABDUCTION at 11
(2017).5
For instance, the report states,
In 2016, Brazil demonstrated a pattern of noncompliance. Specifically,
the judicial authorities in Brazil persistently failed to regularly
implement and comply with the provisions of the Convention. As a
result of this failure, 68 percent of requests for the return of abducted
children under the Convention have remained unresolved for more than
12 months. On average these cases have been unresolved for 49 months.
Brazil has been cited as non-compliant since 2005.
Id. The State Department’s information supports the trial court’s findings concerning
obstacles to locating, recovering, and returning Beth if she is abducted to Brazil, see
TEX. FAM. CODE § 153.501(b), which in turn support the imposition of the travel
restriction under Section 153.503, see id. § 153.503(4).
Father has not shown that the trial court acted without reference to any guiding
rules and principles or in an arbitrary and unreasonable manner by enjoining Father
5
https://travel.state.gov/content/dam/NEWIPCAAssets/pdfs/2017%
20ICAPRA%20Report%20-%20Final%20(1).pdf (last visited May 15, 2019).
34
from taking Beth to Brazil. Accordingly, we hold that the trial court did not abuse
its discretion in ordering the travel restriction.
We overrule Father’s fourth issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Landau.
35