Johnny P. Bryant v. Donna L. Bryant ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-90-193-CV





JOHNNY PAUL BRYANT,

APPELLANT

vs.





DONNA LOUISE BRYANT,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY,

NO. 89-309-F3, HONORABLE DONALD V. HAMMOND, JUDGE PRESIDING

This is an appeal from a divorce and suit affecting the parent-child relationship. After a trial before the court, appellant Johnny P. Bryant was granted a divorce from Donna L. Bryant in a decree dated June 21, 1990. Mr. Bryant was appointed managing conservator of their two minor sons and Mrs. Bryant was ordered to pay $100 per month in child support. As her part of the marital estate, Mrs. Bryant was awarded a computer, a new vehicle subject to debt, and $25,000, to be paid within 90 days of the signing of the decree. Mr. Bryant complains that the trial court erred in its determination of child support and in its division of property. We affirm the trial court's judgment.

SCOPE OF REVIEW

The record in this case contains a statement of facts, but no written findings of fact or conclusions of law were requested or filed. In such a case, we are required to presume the trial court found every issuable fact proposition necessary to sustain the judgment, provided the proposition is one raised by the pleadings and supported by the evidence, and we must affirm the trial judge's decision on any reasonable theory that is consistent with the evidence and the applicable law. We must consider only the evidence favorable to the implied findings and judgment. Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990); Franklin v. Donoho, 774 S.W.2d 308 (Tex. App. 1989, no writ); Matter of Marriage of Miller, 600 S.W.2d 386 (Tex. Civ. App. 1980, no writ).

CHILD SUPPORT

Mr. Bryant complains in his first point of error that the trial court erred by ordering Mrs. Bryant to pay only a "token" amount of child support in the amount of $100 per month. We disagree. The establishment of the terms and conditions of conservatorship and child support is a discretionary function of the trial court. The court may consider all relevant factors consistent with the best interest of the child and the circumstances of the parents. Tex. Fam. Code Ann. §§ 14.052, 14.054(15) (Supp. 1990). An order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Worford, 801 S.W.2d at 109. 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. Id.

Mr. Bryant argues that the court erred in ordering child support below the amount called for by the guidelines. The court shall be guided by the support guidelines set forth in the Family Code, but "may, in rendering its final determination of the amount of support, set the amount of child support either within or outside the range recommended in Section 14.055 of this code if relevant factors other than the guidelines justify a variance from the guidelines." Tex. Fam. Code Ann. § 14.054 (Supp. 1990). A nonexclusive list of relevant factors the court shall consider is set forth in § 14.054. Tex. Fam. Code Ann. § 14.054 (Supp. 1990). A party who contests the amount of child support set by the court may request findings setting forth the specific reasons the amount of support varies from the amount that would result from applying the guidelines, but appellant failed to request such a finding below and we are required to presume the court made findings that support its decision. Tex. Fam. Code Ann. § 14.057 (Supp. 1990). ⁽¹⁾

There is evidence in the record that Mr. Bryant's income is $62,000 per year while Mrs. Bryant has net income of only $909 per month. Mr. Bryant has the security of over fifteen years in his employment while Mrs. Bryant is just re-entering the work force after staying home for a number of years to take care of the family. Mr. Bryant was awarded the family home; Mrs. Bryant is renting her residence and office space. We cannot say Mr. Bryant has demonstrated that child support in the amount of $100 per month is a clear abuse of discretion in light of these circumstances, given the disparity in earnings and evidence of other relevant factors.

Mr. Bryant also complains that the child support is deficient because the trial court failed to order Mrs. Bryant to pay the annual cost of the children's health insurance and one-half of their medical expenses not covered by insurance. Although the Family Code requires a court to order that health insurance be provided for a child, it permits the court to determine which parent shall pay for health insurance coverage. Tex. Fam. Code Ann. § 14.061(b) (Supp. 1990). The trial court did order Mrs. Bryant to pay one-half of all non-covered medical expenses.

Finally, Mr. Bryant complains that the trial court ordered that his obligation to support the children would survive his death and continue as an obligation of his estate. The decree contains a similar provision for Mrs. Bryant. The court has authority to render such an order. See Tex. Fam. Code Ann. § 14.05(d) (1986). Mr. Bryant does not assert his argument by separate point of error and cites no authority in support of this complaint, as a result any error is waived. Rayburn v. Giles, 182 S.W.2d 9 (Tex. Civ. App. 1944, writ ref'd). Mr. Bryant's first point of error is overruled.

PROPERTY DIVISION

In points of error two through five, Mr. Bryant complains that the trial court abused its discretion in dividing the marital estate in an unjust manner. Absent a showing of a clear abuse of discretion, the trial court's division of property will not be disturbed on appeal. Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974).

The parties introduced evidence concerning their property and the value of their assets. The record contains a wide range of proof as to the value of two major assets, their residence and Mr. Bryant's 3M pension benefits. Again, the trial court made no findings of fact as to the value of each asset or the value of the total award to each party. Mr. Bryant argues anew the proof in the record and invites us to believe all evidence in his favor and in support of his contentions. The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony and other evidence in the record.

Mr. Bryant complains in his second point of error that the trial court abused its discretion because it could not award Mrs. Bryant a money judgment for twenty-five thousand dollars and objects because the court considered appellee's exhibit in making the decision. However, Mr. Bryant cites no authority in support of these arguments and, thus, reversal is not required. Rayburn, 182 S.W.2d 9. Clearly, in some instances the trial court may award a money judgment to achieve an equitable division of property. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).

In the same point, Mr. Bryant complains that the trial court abused its discretion in awarding a disproportionate share of community property to Mrs. Bryant when he was entitled to a larger share because she was at fault and he was named managing conservator of the children. Due to an absence of findings as to the value of each asset, Mr. Bryant cannot show that Mrs. Bryant received a disproportionate share of the total marital estate. In any event, the trial court is not required to award an equal division of property but shall divide the parties' estate "in a manner that the court deems just and right, having due regard in the rights of each party and any children of the marriage. While the trial court may consider the relative fault of the parties as one factor, it is not required to do so. Tex. Fam. Code Ann. § 3.63(a) (Supp. 1991); Young v. Young, 609 S.W.2d 758 (Tex. 1980).

In his fourth point, Mr. Bryant contends that a portion of his employment benefits were acquired before marriage and should not have been taken into account in determining the property division. Mr. Bryant expressly set out in his pleadings certain items he claimed as separate property; they did not include any portion of his retirement benefits. He attempts to raise the matter for the first time on appeal. Of course, the burden to prove separate property is on the one claiming the same. In any event, we cannot say that any mischaracterization resulted in an improper division.

Mr. Bryant's third and fifth points of error complain further about the trial court's manner of dividing the parties' property. Again, he cites no authority in support of his contention. Appellant's points of error two through five are overruled.

Because Mr. Bryant has failed to demonstrate that the trial court clearly abused its discretion, we cannot reverse the judgment. The judgment of the trial court is affirmed.

Marilyn Aboussie, Justice

[Before Chief Justice Carroll, Justices Aboussie and Kidd]

Affirmed

Filed: November 6, 1991

[Do Not Publish]

1. The Legislature recently amended the statute by adding a provision requiring the trial court to set out in its order the specific reason for deviating from the guidelines. 1991 Tex. Sess. Law Serv., ch. 459, sec. 3, § 14.057(b), at 1664 (to be codified at Tex. Fam. Code Ann. § 14.057(b)).