in the Interest Of: M. N. M. ( 2003 )

Opinion issued October 16, 2003

    In The  

Court of Appeals  

For The  

First District of Texas  

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  NO. 01-03-00007-CV

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IN THE INTEREST OF M. N. M., A MINOR CHILD

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  On Appeal from the 245th District Court

Harris County, Texas

Trial Court Cause No. 2001-57307  

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MEMORANDUM OPINION  

          In this appeal from a suit affecting a parent-child relationship, appellant, Larndell Matthews, the biological father of M. N. M., challenges the portion of the trial court’s final order requiring Matthews to pay child support in a lump sum totaling $54,600 into a trust account and designating appellee, Tamika A. Sanford, the child’s mother, as trustee of the account.

          In his sole point of error, appellant contends that the trial court abused its discretion in ordering him to make a lump sum payment because appellant “had never evaded his child support obligation, deprived himself of income or placed assets outside the reach of the courts.” We affirm.

Facts and Procedural Background

          In November 2001, Sanford filed a petition to establish the parent-child relationship between her daughter, M. N. M., and Matthews. In response, Matthews filed a counter-petition acknowledging his paternity and seeking to be named joint managing conservator of the child.

          Following a hearing, the trial court designated the parties as joint managing conservators of the child, awarded Sanford the right to establish the primary residence of the child, established periods of possession in accordance with a standard possession order, and ordered Matthews to pay child support in the amount of $390 per month. As part of its child support award, the trial court made the following written findings in its order:

The Court finds that a Wage Withholding Order would not be in the best interest of the child. The Court further finds that a lump sum payment of child support in a trust account for the support in lieu of monthly payments for the support of [the child] by [Matthews] would be in the best interest of the child.

The trial court also ordered Matthews to make “a one time deposit” of $54,600 (the equivalent of 140 months of child support payments) into the trust account and ordered that Sanford be designated as trustee of the account.

          Matthews subsequently filed a motion for new trial challenging the portion of the trial court’s order requiring that he establish the lump sum child support trust account. The trial court denied the motion.

Standard of Review

          A trial court’s order on child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Powell v. Swanson, 893 S.W.2d 161, 163 (Tex. App.—Houston [1st Dist.] 1995, no writ). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford, 801 S.W.2d at 109. In making our determination, we must view the evidence in the light most favorable to the actions of the trial court and indulge every legal presumption in favor of the judgment. Powell, 893 S.W.2d at 163. A trial court does not abuse its discretion as long as there is some evidence of substantive and probative character to support its decision. Id.

Trust Account

          The Family Code permits a trial court to order a parent to pay child support by periodic payments, a lump sum payment, the purchase of an annuity, the setting aside of property to be administered for the support of the child, or any combination of such methods. Tex. Fam. Code Ann. § 154.003 (Vernon 2002). The amount of periodic child support payments established by the statutory guidelines is presumed to be reasonable, and an order of support conforming to such guidelines is presumed to be in the best interest of the child. Id. § 154.122 (Vernon 2002). A court has discretion to determine that the application of the guidelines would be unjust or inappropriate under the circumstances. Id. In making its order of child support, a trial court must make findings of fact, as mandated by statute, if such findings are requested by a party or if “the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines.” Id. § 154.130(a) (Vernon 2002).  

          As part of his point of error, Matthews complains that the trial court made no findings of fact supporting its award of child support. Texas courts have held that such findings are required when an award of child support varies from the statutory guidelines, and it is reversible error for a trial court to fail to make findings of fact when requested to do so. Tenery v. Tenery, 932 S.W.2d 329, 330 (Tex. 1996). Here, the record indicates that Matthews did not request findings of fact from the trial court. However, under the statute, findings of fact are required when the trial court’s order of child support “varies from the amount computed by applying the percentage guidelines.” Tex. Fam. Code Ann. § 154.130(a). Accordingly, we must examine the amount of the trial court’s child support award to determine if it varied from the statutory guidelines.

          At the hearing to determine the appropriate amount of child support, the trial court made oral findings that Matthews was responsible for supporting two other children and was “capable of earning gross income of [$]3,000 a month or more.” Matthews does not challenge these findings. After reviewing the calculations made by the trial court, we conclude that it applied the appropriate statutory guidelines in setting the amount of child support at $390 per month. See id. §§ 154.061, 154.129 (Vernon 2002) (establishing guideline that person with “monthly gross wages” of $3,000 has “net monthly income” of approximately $2,438.25, and setting figure of 16 percent of net income as appropriate amount of child support where one child is before court and person is obligor for two other children: $390.12 is 16 percent of $2,438.25). Thus, based on the record before us, we conclude that it was not necessary for the trial court to make findings of fact justifying its award of child support.

          Matthews does not challenge the monthly amount of support ordered, but argues that the trial court abused its discretion in ordering him to pay 140 months of child support into a trust account in a single lump sum. We must examine the record presented in the light most favorable to the trial court’s ruling to determine whether there was some probative and substantive evidence to support the trial court’s decision. Powell, 893 S.W.2d at 163.  

          At the hearing, Sanford testified that the child was living with her and that, at the time she filed the petition to establish paternity, Matthews had not provided any support for the child for “over a year.” Matthews testified that he had provided support for the child in the past but did not have documentation to verify it. Matthews testified that he had an annual income of approximately $19,000 and paid one-half of a $2,500 monthly mortgage payment on a Kemah townhouse with his sister. Matthews admitted that title to several “other properties” had been transferred to his name “in the last few years.” Matthews also admitted that he had “savings and bank accounts and annuities” totaling “approximately $100,000” and that he owned a second house, located in Missouri City and valued at approximately $150,000, “that was paid for.” Matthews also testified that he worked in “public relations and marketing” for his sister’s bail bonding company and received income in varying amounts from the company, but he disputed documents presented by Sanford indicating that Matthews owned one-half of that company. At the conclusion of the hearing, the trial court made the following oral findings:

The Court’s finding that there’s to be some concern and lack of evidence as to what the income and employment of Mr. Matthews is. The Court’s going to make an exception on the ruling. The Court finds that Mr. Matthews has in his possession or in accounts that he can get access to of [sic] approximately a hundred thousand [dollars] or more.

          Here, the testimony presented to the trial court indicated that Matthews had some history of not supporting the child, although he did not dispute his paternity. Moreover, although Matthews’s testimony was vague as to the source and amount of his income, he unequivocally expressed that, at the time of the hearing, he had ownership of, and access to, funds and property with a value in excess of $100,000. Based on this testimony, the trial court could have reasonably concluded that, despite his ability to support the child, Matthews would revert to his previous pattern of failing to consistently do so.

          Based on the record before us, we hold that the trial court did not abuse its discretion in ordering Matthews to pay a single lump sum amount of child support into a trust account.

          We overrule Matthews’s sole point of error.

Conclusion

          We affirm the order of the trial court.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Taft, Jennings, and Hanks.