in the Interest of C.K.H. and K.D.H., Children ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-257-CV
IN THE INTEREST OF C.K.H.
AND K.D.H., CHILDREN
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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Tony H. appeals the trial court’s order modifying his child
support payments. In two issues, Tony complains that the trial court abused
its discretion by not retroactively applying the modification to his current child
support obligation and by not lowering his future child support obligation. We
will affirm.
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… See Tex. R. App. P. 47.4.
II. BACKGROUND
Tony, incarcerated since December 2004, filed a motion to modify child
support set at $300 per month in May 2001. In his pro se petition, filed
September 22, 2008, Tony requested that his child support be reduced to
$0—retroactively applied to the date of his incarceration. The trial court heard
the motion on June 9, 2009. At the hearing, Tony submitted an Affidavit in
Lieu of Personal Appearance in which he requested that his future child support
payments be modified to $200 per month, upon his release from prison,
because of an additional household that includes two additional children born
in 2005 and 2006.
The trial court entered an order on June 10, 2009, reducing Tony’s
current child support to $0 effective July 1, 2009, and immediately reinstating
his monthly $300 support obligation and arrearage payments upon notifying the
court in writing of his release from the state penitentiary. After the court
denied his motion to modify judgment on July 7, 2009, Tony timely filed his
notice of appeal.
III. ANALYSIS
A. Standard of Review
A trial court is given broad discretion in decreasing or increasing child
support payments, and the court’s order will not be disturbed on appeal except
on a showing of a clear abuse of discretion. In re Z.B.P., 109 S.W.3d 772,
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781 (Tex. App.—Fort Worth 2003, no pet.); Reynolds v. Reynolds, 452 S.W.2d
950, 953 (Tex. Civ. App.—Dallas 1970, no writ). The test for an abuse of
discretion is whether the trial court acted without reference to any guiding rules
or principles; that is, whether the act was arbitrary or unreasonable. Worford
v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Merely because a trial court
may decide a matter within its discretion in a different manner than an appellate
court would in a similar circumstance does not demonstrate that an abuse of
discretion has occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
Because no findings of fact or conclusions of law were requested or filed
in this case, we infer that the trial court made all the findings necessary to
support its judgment. Worford, 801 S.W.2d at 109. “In determining whether
some evidence supports the judgment and the implied findings of fact, ‘it is
proper to consider only that evidence most favorable to the issue and to
disregard entirely that which is opposed to it or contradictory in its nature.’”
Id. “The judgment must be affirmed if it can be upheld on any legal theory that
finds support in the evidence.” Id.
B. Trial Court Has Discretion Not To Retroactively Apply Child Support
Modification
In his first issue, Tony now contends that the trial court abused its
discretion by not retroactively applying the modified child support to the date
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of citation, October 7, 2008. A trial court is empowered to modify a child
support obligation and may retroactively modify support only as to obligations
accruing after the earlier of the date of service of citation or an appearance by
the respondent. Tex. Fam. Code Ann. § 156.401(b) (Vernon 2008); In re
Naylor, 160 S.W.3d 292, 294 (Tex. App.—Texarkana 2005, no pet.); Holley
v. Holley, 864 S.W.2d 703, 707 (Tex. App.—Houston [1st Dist.] 1993, writ
denied). However, a trial court has no affirmative duty to modify retroactively,
and setting the effective date of the order is within the court’s broad discretion.
Naylor, 160 S.W.3d at 294; Black v. Bassett, 619 S.W.2d 193, 196 (Tex. Civ.
App.—Texarkana 1981, no writ).
Here, Tony filed the motion to modify child support in September 2008,
and a hearing on his motion was held in June 2009. Setting the effective date
of the modification to July 1, 2009, was within the discretionary time frame
provided by statute because it was not earlier than either the date of service of
citation or an appearance 2 by Tony. See Tex. Fam. Code Ann. § 156.401;
Naylor, 160 S.W.3d at 294. Because the trial court acted within the range
provided by the family code and did not act arbitrarily or unreasonably, the trial
2
… With the trial court’s permission, Tony appeared and testified at the
hearing by Affidavit in Lieu of Personal Appearance. In his Original Motion to
Modify Child Support, Tony asked the trial court “to conduct a hearing on this
motion, receive testimony from Petitioner and Respondent, either in person, via
teleconference, or by affidavit in lieu of personal appearance. Whichever
pleases the court.”
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court did not abuse its discretion in setting the modification date later than the
date of citation.
Tony also contends the trial court’s delay in conducting his hearing
entitled him to a retroactive child support modification.3 See Tex. R. Jud.
Admin. 7, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app. (Vernon
2005). However, even if there was a delay, Tony cites no authority, and we
find none, in support of his entitlement contention. We overrule Tony’s first
issue.
C. Child Support Guidelines Not Mandatory On Trial Court Modifying
Support Obligation
In his second issue, Tony contends that the trial court abused its
discretion in not modifying his future child support obligation based on the
Texas Family Code’s minimum wage salary guidelines and in consideration of
his other children and household. See Tex. Fam. Code Ann. §§ 154.068, .128
(Vernon 2008). Tony argues that the trial court should have set his future child
support obligation by applying the minimum wage presumption in section
154.068 of the Texas Family Code. This section states, “In the absence of
evidence of the wage and salary income of a party, the court shall presume that
3
… The record reveals Tony submitted an initial request for a hearing on
November 18, 2008.
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the party has wages or salary equal to the federal minimum wage for a 40-hour
week.” Tex. Fam. Code Ann. § 154.068.
Here, there is evidence of Tony’s wage and salary income at the time of
the original child support order. Tony’s Affidavit In Lieu of Personal Appearance
includes a statement that prior to his incarceration, he was employed at $10.50
per hour and averaged a forty-hour work week. Thus, based on his testimony
about his previous earning ability and income—and in the absence of any
evidence that he is unemployable upon his release from incarceration—there is
at least some evidence to support the trial court’s determination of Tony’s
future child support obligation. See Worford, 801 S.W.2d at 109 (holding that
a court’s order of child support will not be disturbed on appeal unless the
complaining party can show a clear abuse of discretion); see also In re Martin,
881 S.W.2d 531, 536 (Tex. App.—Texarkana 1994, writ denied) (holding that
based on appellant’s testimony about his previous income, and in the absence
of any evidence that he is unemployable, there is at least some evidence to
support the trial court’s setting of child support above the federal minimum
wage guidelines).
Tony also contends that the trial court should have applied the Texas
Family Code guidelines for multiple families and set his post-incarceration child
support at $200 per month. See Tex. Fam. Code Ann. § 156.406 (Vernon
Supp. 2009); Escue v. Escue, 810 S.W.2d 845, 848 (Tex. App.—Texarkana
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1991, no writ) (holding that once an obligor produces evidence that he is
paying child support under another child support order, the trial court shall
consider that obligation in making its final determination).
During an obligor’s incarceration, the trial court has the authority to
abate, reduce, or suspend a child support obligation. See Tex. Fam. Code
§ 156.401(d). In determining whether to modify existing child support orders,
the trial court’s use of child support percentage guidelines is discretionary, not
mandatory. In re R.D., No. 02-04-00165-CV, 2005 WL 503055, at *2 (Tex.
App.—Fort Worth Mar. 3, 2005, no pet.) (mem. op.) (citing Escue, 810 S.W.2d
at 848).
Tony’s argument fails because his claim relies in large part upon the
mistaken assumption that the court, in a modification proceeding, may only
order child support obligations in strict conformity with the child support
guidelines. The trial court’s adherence to the guidelines during a modification
proceeding is only discretionary. Escue, 810 S.W.2d at 848. On review, we
allow the trial court broad discretion in setting child support payments and in
modifying those payments. Z.B.P., 109 S.W.3d at 781; In re R.D., 2005 WL
503055 at *2.
Furthermore, a trial court’s determination as to whether a material change
of circumstances has occurred is not guided by rigid rules and is fact specific.
Z.B.P., 109 S.W.3d at 779. Here, the trial court’s order served to abate or
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suspend, rather than permanently modify, Tony’s child support obligation for
the remainder of his incarceration. The trial court reduced Tony’s obligation to
$0 beginning July 1, 2009, until his release from prison. Upon his release, the
previous child support obligation is to resume immediately, including any
arrearage payments. In the absence of evidence showing a clear abuse of
discretion, the trial court’s decision must be upheld. See Worford, 801 S.W.2d
at 109. We overrule Tony’s second issue.
IV. CONCLUSION
Having overruled both of Tony’s issues, we affirm the trial court’s order.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DELIVERED: August 31, 2010
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