in the Interest of N.M.D, R.I.D., and G.T.D. ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00849-CV
IN THE INTEREST OF N.M.D., R.I.D., AND G.T.D., Children
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CI-06895
The Honorable Richard E. Price, Judge Presiding 1
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: July 9, 2014
AFFIRMED
Skye Dicker appeals the trial court’s order modifying the amount of his child support
payment. After finding that Dicker was intentionally underemployed, the trial court increased the
child support payment. We affirm the trial court’s order.
BACKGROUND
Skye and Diana Dicker were divorced in 2008. The divorce decree named Diana as
primary joint managing conservator of their three children, N.M.D., R.I.D., and G.T.D. and
ordered Skye to pay $850 per month in child support. On August 15, 2013, the Texas Attorney
General petitioned to modify the child support order, seeking to increase the monthly payment to
1
Associate Judge James Rausch entered the orders modifying child support and denying the motion for new trial.
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$1,024. An associate judge conducted a hearing on September 5, 2013. After the hearing, the
associate judge found:
[Skye] is intentionally underemployed due to his voluntary termination of his job
with South Texas Pizza Inc. in August 2013. Accordingly, the Court calculated
gross income from both of his jobs at SAISD and South Texas Pizza Inc.
The associate judge then modified the monthly child support payment to $1,012 per month.
Skye’s petition for a de novo review in the district court was denied as untimely filed, and the
associate judge denied Skye’s motion for a new trial. Thereafter, Skye perfected this appeal of the
modification order.
STANDARD OF REVIEW
A trial court may modify a child support order when there has been a material and
substantial change in circumstances. TEX. FAM. CODE ANN. § 156.401(a)(1) (West 2014). We
review the trial court’s order for an abuse of discretion, reversing the order only if “the complaining
party shows that the order constituted a clear abuse of discretion.” In re J.A.J., 283 S.W.3d 495,
497 (Tex. App.—Beaumont 2009, no pet.). A trial court abuses its discretion when it acts
arbitrarily or unreasonably, without reference to guiding rules or principles. Id. Determining
whether the trial court abused its discretion by basing its decision on insufficient evidence requires
us to consider: (1) whether the trial court had sufficient evidence upon which to exercise its
discretion; and (2) whether the trial court erred in its application of that discretion. In re J.M.C.,
395 S.W.3d 839, 844 (Tex. App.—Tyler 2013, no pet.). “The mere fact that a trial judge may
decide a matter within his discretionary authority in a different manner than an appellate judge in
a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).
When reviewing evidentiary sufficiency, we view the evidence in the light most favorable
to the trial court’s actions, indulging every presumption in favor of the judgment. In re J.D.D.,
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242 S.W.3d 916, 920 (Tex. App.—Dallas 2008, pet. denied). A trial court does not abuse its
discretion as long as there is “some evidence of a substantive and probative character to support
the decision.” Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex. App.—Houston [1st Dist.]
1997, pet. denied).
DISCUSSION
We begin by noting that the appellate record does not contain a reporter’s record from the
September 5, 2013 hearing or the subsequent hearing on Skye’s motion for new trial. The record
also contains no indication that Skye requested the reporter’s record from those hearings. The
party who complains on appeal that a trial court abused its discretion has the burden “to bring forth
a record showing such abuse.” Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795
(Tex. 1987). “[W]ithout a reporter’s record, an appellate court cannot review a trial court’s order
for an abuse of discretion.” Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.—
Dallas, 2006, pet. denied). In the absence of a reporter’s record, we must presume that the evidence
adduced during the proceedings support the trial court’s findings. Id.; Sam Houston Hotel, L.P. v.
Mockingbird Restaurant, Inc., 191 S.W.3d 720, 721 (Tex. App.—Houston [14th Dist.] 2006, no
pet.). In accord with this presumption, we hold that the trial court did not abuse its discretion in
modifying the child support order.
We note that Skye has represented himself throughout all proceedings in this case. We
also note that no appellee’s brief has been filed. Even if we take as true the factual assertions in
Skye’s brief, we still hold that the trial court did not abuse its discretion. Skye contends that the
trial court abused its discretion when it considered income from a second job in determining that
there had been a material change in circumstances and in calculating his net resources. In his brief,
Skye explains that he is primarily employed as a public school teacher and suggests that he
obtained secondary employment delivering pizzas during his summer break from teaching. Skye
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explains that the second job “is used as a cushion financially and is not a regular or constant job.”
Skye also challenges the trial court’s finding that he is intentionally underemployed because he
resigned from his second job in August 2013. Skye explains that he did not resign in an effort to
avoid an increase in child support, but rather because he was returning to work as a full-time
teacher at the end of the summer beak. Skye further argues that the trial court’s order essentially
forces him to maintain secondary employment—which jeopardizes his primary job—and is
therefore not in the best interest of the children.
In calculating a child support payment, the trial court must first determine the obligor’s net
resources, which includes current wage and salary earnings from all sources. See TEX. FAM. CODE
ANN. § 154.062(b) (West 2014); Knight v. Knight, 131 S.W.3d 535, 540 (Tex. App.—El Paso
2004, no pet.). Additionally, “[a] parent’s duty to support their child is not limited to the parent’s
ability to pay from current earnings, but also extends to the parent’s ability to pay from any and
all sources that might be available.” In re S.M.B., No. 04-10-00115-CV, 2011 WL 2238222, at*3
(Tex. App.—San Antonio Jun. 8, 2011, no pet.) (mem. op.). “If a trial court finds that a parent is
underemployed, then the court can assess support based upon the parent’s earning potential, not
merely on the parent’s actual earnings.” Tucker v. Tucker, 908 S.W.2d 530, 535 (Tex. App.—San
Antonio 1995, writ denied); see TEX. FAM. CODE ANN. § 154.066 (West 2014). Further, when a
parent is intentionally underemployed, the law does not require “proof of the motive or purpose
behind the . . . underemployment.” Iliff v. Iliff, 339 S.W.3d 74, 80 (Tex. 2011) (disapproving of
DuBois v. DuBois, 956 S.W.2d 607 (Tex. App.—Tyler 1997, no pet.) and other intermediate
appellate court decisions that required proof that intentional underemployment was motivated by
an intent to avoid child support). Thus, proof that an obligor has become or remains
underemployed in an attempt to avoid his child support obligation, though not required, may be
considered by the trial court in making its determination. Id. at 81. Finally, it is within the trial
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court’s discretion whether to consider a parent’s earning potential in determining the amount of a
child support payment. Id.
Based solely on Skye’s contentions, we conclude the trial court did not abuse its discretion
in determining that he was intentionally underemployed. The trial court was in the best position
to weigh the testimony and evidence in light of Skye’s history of part-time employment and the
circumstances surrounding his resignation. As the fact-finder, it was within the trial court’s
province to weigh the credibility of all the testimony and evidence in making its determination.
Id. (citing Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981) (in resolving issues within its
discretion, the trial court is “empowered to use its legal knowledge and its human understanding
and experience.”). In light of the governing law, and based solely on Skye’s factual assertions,
there is nothing to suggest that the trial court abused its discretion.
CONCLUSION
The trial court’s order is affirmed.
Catherine Stone, Chief Justice
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