Edwin Dawson McClendon, Jr. v. Susan L. Hay ( 1994 )

mcclendon IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-184-CV





EDWIN DAWSON MCCLENDON, JR.,

APPELLANT

vs.





SUSAN L. HAY,

APPELLEE

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT

NO. 93-738-F26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING

Appellant Edward McClendon appeals from a district court order modifying the amount of child support he is required to pay appellee, Susan Hay, each month for the maintenance of their two minor children. McClendon claims that the district court abused its discretion by setting the monthly child support at a level that is unreasonable in light of his net resources and is in violation of the guidelines established by the Texas Family Code. See Tex. Fam. Code Ann. § 14.055 (West Supp. 1994). We will affirm the district court's order.

DISCUSSION

McClendon and Hay were divorced in Dallas County in June 1987. As part of the final divorce decree, Hay was named managing conservator of the couple's two minor children and McClendon was ordered to pay child support of $600 per month or 25% of his net income, whichever was greater. The suit was transferred to Williamson County by an agreed order in June 1993. In October 1993, McClendon moved to modify the original divorce decree and reduce his obligation for child support, claiming that his circumstances had "materially and substantially changed." See id. §§ 14.056, .08(c)(2). Hay counterclaimed for (1) reimbursement of past medical expenses not covered by insurance and payment of one-half of the children's insurance premiums and one-half of future non-covered medical expenses; ⁽¹⁾ and (2) modification of McClendon's visitation rights.

The parties stipulated to a visitation schedule and to McClendon's liability for past and future medical expenses not covered by insurance. The parties also agreed that McClendon would pay Hay $100 per month in lieu of providing medical insurance for the children. Consequently, the only contested issue for the court's determination was the amount of McClendon's monthly child support payment. The parties agreed to submit the issue on limited documentary evidence and arguments of counsel, without oral testimony. Based on the evidence and the Family Code guidelines, the district court found McClendon to have net monthly resources of at least $2800 and set child support payments at $700 per month. See id. § 14.055(b) (child support guideline percentage for two children is 25%).

In points of error one, three, four, six and seven, McClendon asserts that the evidence was factually insufficient to support the district court's finding of net resources and that the court therefore abused its discretion in setting the amount of McClendon's child support payments. "A court's order of 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). A trial court abuses its discretion if it acts without reference to any guiding rules or principles, and such action is therefore arbitrary and unreasonable. Id.

Based on the limited employment records from the two jobs that McClendon held at the time of the hearing and from federal income tax returns, the trial court found that McClendon has the ability to earn in excess of $50,000 annually. One pay stub from McClendon's first employer reflected gross monthly income of $4,276 in November 1993; three pay stubs from his second employer reflected average weekly earnings of $833 in September 1993. His 1991 tax return reflected wages of $51,319 ($4,275 per month), while his 1992 tax return reflected wages of $19,618 ($1,635 per month). There was argument to the court that McClendon's earnings were derived from commissions on sales and could vary greatly. Perhaps the court took this argument and McClendon's diminished earnings in 1992 into account when it calculated monthly net resources to be $2800, a figure substantially less than the net monthly income based on McClendon's most recent wage statements or his 1991 income. Applying the statutory tax charts the court is instructed to use in computing net monthly income, gross monthly wages of $4276 produce net monthly income of approximately $3,120; gross weekly wages of $833 ($3610 per month) produce net monthly income of approximately $2700. See Tex. Fam. Code Ann. § 14.053(h) (West Supp. 1994) (net income derived from gross wages by deducting allowable social security, Medicare, and federal income taxes). Furthermore, argument was presented, with no evidence to the contrary, that McClendon was currently working two jobs; hence, the trial court was entitled to consider the combined income from both jobs in calculating McClendon's resources. Instead, the trial court applied the statutory child support guidelines to a net monthly resources amount of only $2800, an amount substantially less than that the court could have used based on the cursory evidence before it.

The essence of McClendon's factual sufficiency argument is that the trial court erroneously considered only his most recent income in determining his net resources and did not properly account for the historical fluctuations in his earnings. When reviewing a court's findings for factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re Estate of King, 244 S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986). See generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991). We attach to a court's findings of fact the same weight that we attach to a jury's verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex. Civ. App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). Accordingly, if evidence exists on both sides of a fact dispute, we will not substitute our judgment for that of the trier of fact merely because we might have reached a different conclusion. Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 923 (Tex. App.--Houston [1st Dist.] 1988, no writ). Moreover, when reviewing a trial court's decision under an abuse of discretion standard, we do not consider legal and factual sufficiency of the evidence as independent grounds of reversible error, but rather as relevant factors in assessing the trial court's decision. Mai v. Mai, 853 S.W.2d 615, 618 (Tex. App.--Houston [1st Dist.] 1993, no writ). Although the earnings statements before the court were sketchy, McClendon stipulated to a determination of child support on the basis of this limited documentary evidence; he cannot now be heard to complain that the court did what he requested by extrapolating average gross earnings from the evidence submitted. We therefore conclude that the trial court did not abuse its discretion in setting the amount of monthly child support payments at $700, based on 25% of $2800 in net resources. McClendon's points of error one, three, four, six and seven are overruled.

In his second point of error, McClendon argues that the trial court improperly applied the statutory guidelines to his "earning potential" rather than his actual income. Under the Texas Family Code, an obligor's earning potential may be used to compute child support payments if the obligor is intentionally unemployed or underemployed. Tex. Fam. Code Ann. § 14.053(f) (West Supp. 1994). McClendon contends that the evidence was legally or factually insufficient to support a finding that he was intentionally underemployed. This argument is without merit, however, because the trial court neither found nor was required to find that McClendon was intentionally underemployed; the court based its finding on McClendon's present ability to provide child support from his current net resources. See id. § 14.053(g). Although the trial court found that McClendon "has the ability to earn in excess of $50,000 annually," we conclude that this reflects merely an extrapolation of annual income based on the evidence of earnings in September and November of 1993, rather than a determination of McClendon's hypothetical "earning potential." Because McClendon asked the court to determine his child support obligation based on the limited evidence he submitted, we find no error. McClendon's second point of error is overruled.

McClendon contends in his fifth point of error that the trial court abused its discretion in failing to deduct from his net resources the $100 per month he agreed to pay Hay in lieu of providing health insurance for his children. The Family Code specifically provides that a court shall order the payment of health insurance expenses in addition to child support. See id. §§ 14.053(d), .061; see also Kish v. Kole, 874 S.W.2d 835, 837 (Tex. App.--Beaumont 1994, no writ). McClendon correctly argues that the court should deduct these expenses in calculating "net resources." See Tex. Fam. Code Ann. § 14.053(b) (West Supp. 1994). Although the trial court did not include a specific calculation in its findings deducting the $100 payment from McClendon's gross monthly income, we assume the court properly accounted for this expense in determining McClendon's net resources to be $2800, since the stipulated evidence supports a finding of net monthly income in excess of $2900. Accordingly, the trial court did not abuse its discretion, and McClendon's fifth point of error is overruled.

Having found no error, we affirm the trial court's order.

Bea Ann Smith, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: December 14, 1994

Do Not Publish

1.   The original decree ordered McClendon to provide medical insurance for the children as part of his child support obligation.