in the Interest of A.B.K. and D.A.K., Children ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00272-CV

In the Interest of A.B.K. and D.A.K., Children

From the 19th District Court

McLennan County, Texas

Trial Court No. 2000-3992-4

MEMORANDUM  Opinion

            Siegfried Kreis appeals from an order modifying his child support obligation after the parties agreed that one of their children would move into Kreis’s home while the other would remain with his mother Cathleen Jones.  Kreis contends in four issues that the modification constitutes an abuse of discretion because: (1) the court failed to set the amount of support within the child support guidelines provided by the Family Code for an obligor who has net monthly resources in excess of $6,000; (2) there is no evidence or factually insufficient evidence in the record to support a departure from the child support guidelines; (3) the court erroneously relied on a prior mediated settlement agreement which had been incorporated into the parties’ divorce decree; and (4) the court failed to require Jones to pay child support for the child in Kreis’s custody.  We will affirm.

Background

            The parties were divorced in 2001.  Pursuant to the mediated settlement agreement, Jones received the right to establish their sons’ primary residence.  It was further agreed that Kreis would pay $2,400 per month in child support as long as Jones and the children resided in McLennan County and that $900 of the agreed child support was conditioned on Jones maintaining the children’s residence in that county or a contiguous county.  Finally, the parties agreed that, if Kreis filed a motion to modify, (1) his obligation to pay more than $1,500 per month in child support would cease, and (2) Jones’s obligation to maintain the children’s residence in McLennan County or a contiguous county would likewise cease.

            In accordance with the settlement agreement, the divorce decree provided in pertinent part:

            IT IS ORDERED that SIEGRFIED RICHARD KREIS is obligated to pay and shall pay to CATHLEEN SPEARS KREIS child support of $2,400.00 per month, of which $1,500.00 is characterized as child support under the “net cap” provisions of Section 154.125 and 154.126, Texas Family Code, and with the balance being additional child support and the consideration for CATHLEEN SPEARS KREIS’ agreement to maintain the children’s residence in McLennan County or counties contiguous hereto . . . .

. . . .

            In the event SIEGFRIED RICHARD KREIS moves to modify this support order, the parties agree, and the Court ORDERS that CATHLEEN SPEARS KREIS is relieved of the obligation to maintain McLennan County as the residence of the children.

            Kreis filed a petition to modify alleging: (1) A.B.K. wanted to live with Kreis and the decree should be modified to permit Kreis to designate A.B.K.’s primary residence; (2) his monthly child support obligation was not in “substantial compliance” with the statutory guidelines and should be reduced; and (3) it had been three years since the divorce decree was rendered, and the monthly child support differed by either 20 percent or $100 from the amount provided by the guidelines.[1] After a hearing, the court issued an order granting Kreis’s request to designate A.B.K.’s primary residence and reduced Kreis’s monthly child support obligation to $2,000.

Child Support Guidelines

            Kreis contends in his first issue that the court abused its discretion by refusing to modify his child support obligation so that it fell within the guidelines of section 154.126 of the Family Code.

            We review child support orders under an abuse-of-discretion standard.  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re J.C.K., 143 S.W.3d 131, 134 (Tex. App.—Waco 2004, no pet.).  We do not conduct an independent review of findings of fact in a child support case under traditional legal and factual sufficiency standards.  J.C.K., 143 S.W.3d at 135; London v. London, 94 S.W.3d 139, 143-44 (Tex. App.—Houston [14th Dist.] 2002, no pet.).  Rather, legal and factual sufficiency are factors which can be considered in determining whether an abuse of discretion has occurred.  J.C.K., 143 S.W.3d at 135; London, 94 S.W.3d at 143-44.

In re J.D.M., 221 S.W.3d 740, 742 (Tex. App.—Waco 2007, no pet.).

            In an original suit in which a trial court awards child support, the percentage guidelines set forth in Chapter 154 of the Family Code are “presumed to be reasonable” and in accordance with “the best interest of the child.”  Tex. Fam. Code Ann. § 154.122(a) (Vernon 2002).  However, the parties may agree to a different amount of support which will be enforced “[i]f the court finds that the agreement is in the child’s best interest.”  See id. § 154.124 (Vernon Supp. 2007).  In addition, the court may determine that a different amount of support is warranted on a finding that “the application of the guidelines would be unjust or inappropriate under the circumstances.”  Id. §§ 154.122(b), 154.123 (Vernon 2002).

            Section 154.126 applies when an obligor’s net monthly resources exceed $6,000.  Id. § 154.126 (Vernon 2002). Under section 154.126, “the court shall presumptively apply the percentage guidelines to the first $6,000 of the obligor’s net resources” and may order additional support “as appropriate, depending on the income of the parties and the proven needs of the child.”  Id. § 154.126(a).  “However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child.”  Id. § 154.126(b); see also Lide v. Lide, 116 S.W.3d 147, 156-57 (Tex. App.—El Paso 2003, no pet.).[2]

            In a suit to modify a child support order, the court “may modify the order to substantially conform with the guidelines” but the court may also “consider other relevant evidence in addition to the factors listed in the guidelines.”  Tex. Fam. Code Ann. § 156.402(b) (Vernon 2002) (emphasis added).  Thus, the court’s use of the guidelines for setting the amount of child support in a modification proceeding is discretionary, not mandatory.  See Friermood v. Friermood, 25 S.W.3d 758, 760 (Tex. App.—Houston [14th Dist.] 2000, no pet.); In re G.J.S., 940 S.W.2d 289, 294 (Tex. App.—San Antonio 1997, no writ).

            Here the court found that “application of the guidelines in this case would be unjust.”[3]  Because this is a modification proceeding, we cannot say that the court abused its discretion by failing to apply the child support guidelines in determining the amount of child support.  See Tex. Fam. Code Ann. § 156.402(b); Friermood, 25 S.W.3d at 760; G.J.S., 940 S.W.2d at 294.  Kreis’s first issue is overruled.

Sufficiency of Evidence

            Kreis contends in his second issue that the court abused its discretion by only reducing the amount of child support to $2,000 per month because there is no evidence or factually insufficient evidence of D.A.K.’s “proven needs” under section 154.126 to justify a departure from the guidelines.  However, we have already observed that the trial court is not required to use the guidelines when setting the amount of child support in a modification proceeding.  See Tex. Fam. Code Ann. § 156.402(b); Friermood, 25 S.W.3d at 760; G.J.S., 940 S.W.2d at 294.  Therefore, Kreis’s second issue is overruled.

Geographic Restriction

            Kreis contends in part of his third issue that the court abused its discretion by considering the prior mediated settlement agreement as a basis for requiring the parties to reside in McLennan County or a contiguous county.

            In an order for joint managing conservatorship, “the court shall:”

(1) designate the conservator who has the exclusive right to determine the primary residence of the child and:

(A) establish, until modified by further order, a geographic area within which the conservator shall maintain the child’s primary residence; or

(B) specify that the conservator may determine the child’s primary residence without regard to geographic location.

Tex. Fam. Code Ann. § 153.134(b)(1) (Vernon Supp. 2007).

            Under the original divorce decree and pursuant to the settlement agreement, the parties were appointed joint managing conservators.  Jones was given the right to establish the children’s primary residence in McLennan County or a contiguous county.  See id. § 153.134(b)(1)(A).

            In Kreis’s motion to modify, he sought to be designated as the parent who would determine A.B.K.’s primary residence.[4] The court granted this request but also determined that A.B.K.’s primary residence must remain within the same geographic area as that provided by the original divorce decree.  Although not stated in the court’s written findings of fact,[5] the trial judge did explain to the parties at the conclusion of the hearing that he considered it important and in the best interest of the children for them to remain in close geographic proximity.  See One Ford Mustang v. State, 231 S.W.3d 445, 454 (Tex. App.—Waco 2007, no pet.) (giving consideration to trial court’s “oral finding”); but cf. In re Doe 10, 78 S.W.3d 338, 340 n.2 (Tex. 2002) (“Oral comments from the bench are not written findings of fact.”); In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984) (per curiam) (appellate court may not consider trial judge’s oral comments as substitute for written findings); In re E.A.S., 123 S.W.3d 565, 569 (Tex. App.—El Paso 2003, pet. denied) (“Oral statements by the judge on the record will not be accepted as findings of fact.”).

            Regardless of the trial court’s oral comment, it was within the court’s discretion to determine whether Kreis and Jones should be permitted to establish their sons’ primary residences with or without geographic restriction.  See Tex. Fam. Code Ann. § Tex. Fam. Code Ann. § 153.134(b)(1); Stucki v. Stucki, 222 S.W.3d 116, 125-27 (Tex. App.—Tyler 2006, no pet.); Bates v. Tesar, 81 S.W.3d 411, 440 (Tex. App.—El Paso 2002, no pet.).  Aside from the fact that a similar geographic restriction was contained in the parties’ settlement agreement and the original divorce decree, Kreis refers us to no evidence in the record to support his contention that the court’s imposition of a geographic restriction in the modification order constitutes an abuse of discretion.  Therefore, we cannot say that the court abused its discretion by imposing the geographic restriction.

Additional Child Support

            Kreis also contends in his third issue that the court abused its discretion by using the settlement agreement as a basis for setting the amount of child support in the modification order.

            The settlement agreement and the divorce decree conditioned $900 of Kreis’s monthly child support obligation on Jones maintaining the children’s residence in the vicinity of McLennan County.  Kreis refers to this as the “residency bonus.”  He argues, in essence, that even though the court reduced his monthly child support obligation by $400, the court should have reduced it by at least $900 because, under the terms of the settlement agreement, his obligation to pay the “residency bonus” ceased when he filed the petition to modify.  Kreis also argues that the settlement agreement was no longer binding on the parties and thus could not serve as a basis for requiring child support in excess of the statutory guidelines.

            Kreis’s argument arises primarily from certain findings of fact issued by the court and the following statement the judge made during the modification hearing:

I have previously given Dr. Kreis a break on the $2,400 a month he was paying for both children, and I reduced it to $2,000 under the temporary orders.  In order to give affect [sic] to the mediated settlement agreement, I’m going to maintain that same amount as child support at this time, and since I’m saying that the mediated agreement is binding on the parties, I’m going to find that the amount above the guideline support is the consideration for Mrs. Jones agreeing to maintain the children’s residence in McLennan or contiguous counties.

The pertinent written findings[6] are as follows:

3.         The Court ordered that the monthly amount of child support would be TWO THOUSAND DOLLARS ($2,000.00) per month.

4.         The Court found that the application of the guidelines in this case would be unjust.

            Additionally found that:

a. The monthly net resources of the obligor per month are in excess of FIFTEEN THOUSAND DOLLARS ($15,000.00);

b. The monthly net resources of the obligee per month are THREE THOUSAND DOLLARS ($3,000.00);

c. The percentage applied to the obligor’s net resources for the child support by the actual order rendered by the Court is less than thirteen percent (13%);

d. The amount of child support if the percentage guidelines are applied to the first $6,000 of the obligor’s net resources is TWELVE HUNDRED DOLLARS ($1,200.00).

5.         The prior agreement by the parties is consistent with TWO THOUSAND DOLLARS ($2,000.00) per month in child support.

6.         The proven needs of the child include a lifestyle similar to that of his sibling.

7.         Taking into consideration the circumstances of the parents, TWO THOUSAND DOLLARS ($2,000.00) per month is in the best interest of the child.

8.         In light of all these factors, additional support in excess of the statutory guidelines is owing on the part of Kreis to Jones.

            Unlike the court’s determination of custody issues (and in particular the geographic residency restriction), Kreis requested findings of fact regarding why the court chose to depart from the guidelines.  The court’s written findings necessarily supersede any oral findings stated on the record.  Maeberry v. Gayle, 955 S.W.2d 875, 878 n.3 (Tex. App.—Corpus Christi 1997, no pet.) (“The court’s written findings of fact control over its oral findings.”); see also Doe 10, 78 S.W.3d at 340 n.2; W.E.R., 669 S.W.2d at 716; E.A.S., 123 S.W.3d at 569.

            The court did not make a written finding of fact or conclusion of law[7] that the parties’ settlement agreement was binding.  The court apparently did view the amount of child support established by the settlement agreement and the corresponding divorce decree as a benchmark for determining the extent to which Kreis’s support obligation should be modified.  This does not, by itself, establish an abuse of discretion in a modification proceeding.  See J.D.M., 221 S.W.3d at 744 (in deciding whether to modify child support, “the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order, with the circumstances existing at the time modification is sought”).

            The gist of Kreis’s complaint seems to be that the trial court should not have used the settlement agreement as a reference point in the modification hearing but instead should have used the guidelines as the baseline for determining the amount of support and then varied from the amount dictated by the guidelines only if the evidence required or permitted such a variance.  If this were an original suit we would agree, but because this is a modification proceeding, we do not.

            As the movant, it was Kreis’s burden to prove: (1) a material change of circumstances; and (2) the extent to which the existing child support should be modified because of that change.  See London v. London, 192 S.W.3d 6, 15 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Cameron v. Cameron, 158 S.W.3d 680, 682 (Tex. App.—Dallas 2005, pet. denied).  Under section 156.402(b), Kreis bore the burden of proving that it would be in the best interest of D.A.K. for the amount of child support “to substantially conform with the guidelines.”  See Tex. Fam. Code Ann. § 156.402(b) (“the court may modify the order to substantially conform with the guidelines if the modification is in the best interest of the child”).  Instead, Kreis faults Jones, the non-movant, for failing to establish D.A.K.’s “proven needs” under section 154.126.

            The only evidence Kreis offered to support a reduction of child support is that Jones will necessarily have one less child to take care of.  Instead, Kreis devotes most of his argument to highlighting the extent to which the amount of child support ordered varies from what the guidelines would require.  The court expressly found that application of the guidelines would be “unjust.”  The court was not bound by the guidelines in this modification proceeding and was permitted by statute to “consider other relevant evidence.”  Id.; Friermood, 25 S.W.3d at 760; G.J.S., 940 S.W.2d at 294.  From the record before us, we cannot say that the court abused its discretion by requiring Kreis to pay $2,000 per month in child support.  Accordingly, we overrule his third issue.

Jones as Obligor

            Although Kreis did not brief a separately enumerated issue regarding the trial court’s refusal to require Jones to pay child support, he does include argument and authorities pertinent to this contention within each of his three enumerated issues.  Therefore, we address this contention as a separate issue.  See Tex. R. App. P. 38.1(e) (“The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.”); Lee v. Hasson, No. 14-05-00004-CV, 2007 WL 236899, at *14 n.11 (Tex. App.—Houston [14th Dist.] Jan. 30, 2007, pet. denied) (addressing “subsidiary question”); In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet. denied) (same).

            Kreis did not include a request that Jones should be required to pay child support in his Second Amended Petition to Modify the Parent-Child Relationship.[8] Rather, he requested only that his support be reduced: (1) to more substantially comply with the guidelines; and (2) to account for the increased expenses he has incurred because A.B.K. came to live with him.

            Because there are no pleadings to support an order requiring Jones to pay child support, we cannot say that the court abused its discretion in this regard.  See In re B.M., 228 S.W.3d 462, 465 (Tex. App.—Dallas 2007, no pet.); Stucki, 222 S.W.3d at 121-22; Binder v. Joe, 193 S.W.3d 29, 33 (Tex. App.—Houston [1st Dist.] 2006, no pet.); cf. Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967) (“Technical rules of practice and pleadings are of little importance in determining issues concerning the custody of children.”); Peck v. Peck, 172 S.W.3d 26, 35 (Tex. App.—Dallas 2005, pet. denied) (same).  Accordingly, we overrule this contention.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs with a note in only the judgment of the Court.  A separate opinion will not be issued. Chief Justice Gray notes as follows:  “The Appellant met his burden to show changed circumstances.  There are a number of statements in the Court’s opinion with which I do not agree, most of which are unnecessary dicta that does not impact the result.  I do not find, however, the distinction in the trial court’s discretion, or evidence it can consider, when setting the amount of child support in a modification hearing that is in any way different than at the time of the divorce as the Court has found.  While I may have set a different amount for child support for only one of the two children, I find no abuse of the trial court’s considerable discretion in this modification hearing.”)

Affirmed

Opinion delivered and filed November 7, 2007

[CV06]

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[1]               Under section 156.401(a-1) of the Family Code, if as here the parties had previously agreed to a different amount of child support than provided by the statutory guidelines, then “the court may modify the order only if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order’s rendition.”  Tex. Fam. Code Ann. § 156.401(a-1) (Vernon Supp. 2007); cf. Tex. Fam. Code Ann. § 156.401(a) (Vernon Supp. 2007) (child support may be modified if: (1) there has been a material and substantial change of circumstances; or (2) “it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines”).

[2]               By comparison, an obligor with net monthly resources of $6,000 or less may conceivably be required to pay more than the “proven needs” of the child.  See Tex. Fam. Code Ann. § 154.125 (Vernon 2002); Lide v. Lide, 116 S.W.3d 147, 156-57 (Tex. App.—El Paso 2003, no pet.).

[3]               The court stated this “finding” in both its original Finding of Fact No. 4 and its “additional” Finding of Fact No. 4.  Despite the label, this is arguably a conclusion of law rather than a finding of fact.  See Ray v. Farmers State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979) (designations trial court assigns to findings of fact and conclusions of law are not controlling); Smith v. Smith, 112 S.W.3d 275, 279 (Tex. App.—Corpus Christi 2003, pet. denied) (same).

[4]               Kreis did not, however, make any allegation with regard to whether he should be permitted to determine A.B.K.’s primary residence with or without geographic restriction.

[5]               Kreis requested written findings of fact with respect to only the child support determination.

[6]               A substantially identical version of the quoted original findings of fact is included with identical numbering in the “additional” findings of fact.

[7]               In fact, the court made no written “conclusions of law” or at least none denominated as such.

[8]               By contrast, Kreis did request in his First Amended Petition to Modify that Jones be required to pay temporary child support for A.B.K.  The court denied this request.