Roger Darren Melton v. Irina Zhekova Toomey ( 2011 )

OPINION
No. 04-10-00698-CV
Roger Darren MELTON,
Appellant
v.
Irina Zhekova TOOMEY,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 11625
Honorable N. Keith Williams, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: June 1, 2011
AFFIRMED
This appeal arises from a modification proceeding in which a jury determined that the
conservatorship of the child in question, L.M., should not be modified. Roger Darren Melton
elected to request a partial reporter’s record in this appeal. See TEX. R. APP. P. 34.6(c). Melton
raises six issues in his brief; however, if Rule 34.6(c) applies, Melton is limited to the points or
issues he stated that he would present on appeal in requesting the partial reporter’s record. TEX.
R. APP. P. 34.6(c)(1); In re J.S.P., 278 S.W.3d 414, 418 (Tex. App.—San Antonio 2008, no pet.).
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Irina Zhekova Toomey asserts that Melton failed to comply with Rule 34.6(c) in requesting the
partial reporter’s record and thus is not entitled to the presumption that the partial reporter’s
record constitutes the entire record for purposes of appellate review. TEX. R. APP. P. 34.6(c)(4);
see also In re J.S.P., 278 S.W.3d at 418 (courts presume material missing from partial reporter’s
record is relevant and supports the trial court’s judgment where a party fails to comply with Rule
34.6(c)). Because Melton’s compliance with Rule 34.6(c) affects both the issues we may
consider and the presumption applicable in reviewing the record, we first address whether
Melton complied with Rule 34.6(c).
PARTIAL REPORTER’S RECORD
Rule 34.6(c) permits an appellant to request a partial reporter’s record. See TEX. R. APP.
P. 34.6(c). If properly requested, the appellate court is required to presume that the partial
reporter’s record constitutes the entire record for purposes of appellate review; however, any
other party can designate additional exhibits and portions of the testimony to be included in the
reporter’s record. TEX. R. APP. P. 34.6(c)(2),(4). Rule 34.6(c)(1) provides, “If the appellant
requests a partial reporter’s record, the appellant must include in the request a statement of the
points or issues to be presented on appeal and will then be limited to those points or issues.”
TEX. R. APP. P. 34.6(c)(1). The Texas Supreme Court has, however, adopted a more flexible
approach to the application of Rule 34.6. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex.
2002).
In Bennett v. Cochran, the court held that the presumption in Rule 34.6(c) applied even
though the appellant did not file his statement of issues until two months after he filed his notice
of appeal. 96 S.W.3d at 229-30. The court noted that the appellee had more than two months to
file his brief after he received appellant’s statement of issues, and the appellee did not allege that
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he was deprived of the opportunity to designate additional portions of the record or that he was
otherwise prejudiced by appellant’s delay in filing the statement of issues. Id. Similarly, the
court held in another case that written notice provided to the appellee of the issues the appellant
intended to raise on the same day the record request was made satisfied the rule even though the
written notice was not in the actual record request. Furr’s Supermarkets, Inc. v. Bethune, 53
S.W.3d 375, 377 (Tex. 2001).
In this case, Melton filed a notice of appeal entitled, “Petitioner’s Notice of Limited
Appeal.” See Furr’s Supermarkets, Inc., 53 S.W.3d at 377 (referring to appeal based on a partial
reporter’s record as a limited appeal). In the notice of appeal, Melton stated he was asserting his
right to a limited appeal of the trial court’s judgment “in the failure and refusal of the Court to
order Respondent, Irina Zhekova Melton (Toomey) to pay child support and health insurance.”
Given the Texas Supreme Court’s relaxation of Rule 34.6(c) with regard to the manner in which
notice of the points or issues to be presented can be provided, we hold that the statement of the
issues to be presented in Melton’s notice of appeal is sufficient to invoke the presumption of
Rule 34.6(c)(4). See Trien v. Equity Real Estate, Inc., No. 08-99-00464-CV, 2001 WL 1383115,
at *2-3 (Tex. App.—El Paso Nov. 8, 2001, no pet.) (holding notice of issues to be presented
contained in notice of appeal sufficient to invoke presumption of Rule 34.6(c)(4)) (not
designated for publication); see also Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL
4263107, at *1 (Tex. App.—Corpus Christi Nov. 25, 2009, pet. denied) (noting presumption not
invoked where appellants did not announce intent to limit appeal or include notice of issues to be
presented in their record request or notice of appeal). However, this also means that Melton is
limited on appeal to the issues presented in his notice of appeal. See TEX. R. APP. P. 34.6(c)(1);
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In re J.S.P., 278 S.W.3d at 418. Accordingly, we only consider Melton’s first and second issues
in his brief which relate to the trial court’s order regarding child support and health insurance.
CHILD SUPPORT AND HEALTH INSURANCE
Melton asserts that the trial court abused its discretion in failing and refusing to order
Toomey to pay “guideline” child support and health insurance. Melton argues that the guideline
child support is presumed to be in the best interest of the child and no evidence was presented to
“substantiate a variation.” Melton also asserts that Toomey admitted helping in her husband’s
jewelry store so the “[i]ncome from the jewelry store should be included in the calculation of
child support” since Toomey is “intentionally unemployed or underemployed.” Melton contends
that the only explanation for the trial court’s refusal to order Toomey to pay child support and to
pay for L.M.’s health insurance is “sex discrimination.”
A trial court’s order pertaining to child support will not be reversed on appeal unless the
complaining party can show a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108,
109 (Tex. 1990); Brejon v. Johnson, 314 S.W.3d 26, 29 (Tex. App.—Houston [1st Dist.] 2009,
no pet.); Friermood v. Friermood, 25 S.W.3d 758, 760 (Tex. App.—Houston [14th Dist.] 2000,
no pet.). “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.”
Worford, 801 S.W.2d at 109. The Texas Family Code allows a court to modify a child support
order if the movant shows that the circumstances of the child or a parent have materially and
substantially changed since the date of the order’s rendition. Cameron v. Cameron, 158 S.W.3d
680, 682 (Tex. App.—Dallas 2005, pet. denied); Friermood, 25 S.W.3d at 760. As the movant,
it was Melton’s burden to show the requisite material and substantial change in circumstances
since the entry of the previous order. Cameron, 158 S.W.3d at 682. Moreover, a court’s
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consideration of the child support guidelines in a modification proceeding is discretionary, not
mandatory. Brejon, 314 S.W.3d at 30-31; Friermood, 25 S.W.3d at 760. Accordingly, a child
support order not in compliance with guidelines does not in and of itself establish a material and
substantial change in circumstances warranting modification. Brejon, 314 S.W.3d at 31;
Friermood, 25 S.W.3d at 760.
To determine whether there has been a substantial and material change, the court must
compare the financial circumstances of the child and the affected parties at the time the order
was entered with their financial circumstances at the time the modification is sought. In re
C.C.J., 244 S.W.3d 911, 917-18 (Tex. App.—Dallas 2008, no pet.); Cole v. Cole, 882 S.W.2d
90, 92 (Tex. App.—Houston [14th Dist.] 1994, writ denied). “Without evidence setting out the
financial circumstances of the parties at the time the original decree of divorce was entered, or
the financial circumstances of the parties at the time of the hearing on the motion to modify, the
family court cannot make a determination that there has been a material and substantial change.”
Cole, 882 S.W.2d at 92; see also In re C.C.J., 244 S.W.3d at 917-18. As the movant, it was
Melton’s burden to present evidence of Toomey’s historical and current financial circumstances.
Cameron, 158 S.W.3d at 682.
The divorce decree was signed on February 9, 2009. Toomey was not ordered to pay any
child support in accordance with the parties’ mediation agreement, and Melton was required to
maintain health insurance for L.M. The hearing on the motion to modify was held on August 26,
2010, and the trial court signed the judgment on September 7, 2010.
We initially note that Melton’s argument with regard to the child support is primarily
premised on the child support guidelines. However, as previously noted, such guidelines are
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discretionary, not mandatory, in a modification proceeding. Brejon, 314 S.W.3d at 30-31;
Friermood, 25 S.W.3d at 760.
The partial reporter’s record in this case contains only Toomey’s testimony. It is clear
from Toomey’s testimony that several other witnesses testified, including Toomey’s husband and
several professional counselors. However, we will apply the presumption that the partial
reporter’s record constitutes the entire record for purposes of the child support and health
insurance issues. TEX. R. APP. P. 34.6(c)(4).
Melton relies on Toomey’s affirmative response to his attorney’s question regarding
whether she was voluntarily unemployed. The record, however, establishes that Toomey
somewhat struggles with English and even used a Russian language translator on visits with
professional counselors. Moreover, whether Toomey was voluntarily unemployed was a
determination the trial court was required to make.
Melton also relies on Toomey’s testimony that she was employed at a jewelry store
making from $12 to $13 an hour at the time of the divorce; however, at the time of the hearing,
she helped her husband with that jewelry store without being paid. Toomey also testified,
however, that at the time of the divorce, even with her hourly pay, she was living in a
government subsidized apartment, receiving food stamps, and also receiving spousal support
from Melton. Melton argues that the jewelry store’s income should be included in calculating
the child support that Toomey should pay; however, the appellate record contains no evidence to
prove the jewelry store’s income. See Cameron, 158 S.W.3d at 682 (noting movant has burden
to produce evidence of net income if necessary for the success of his motion to modify). In
response to a question by Melton’s attorney regarding whether Toomey could find outside
employment earning at least $1,600 per month, Toomey stated she was unsure. Even if we were
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to assume this testimony established Toomey had the capacity to earn $1,600 per month, this is
no evidence of a material and substantial change in circumstances since it is the same amount
Toomey allegedly was making at the time of the divorce based on the questions posed by
Melton’s attorney. Moreover, no evidence was introduced regarding Toomey’s expenses. See In
re C.C.J., 244 S.W.3d at 918 (noting record must contain evidence of historical and current
expenses). While questioning Toomey, Melton’s attorney also alluded to the testimony of
Toomey’s husband regarding Toomey undergoing “a couple of surgeries in the last 18 months.”
Although Toomey testified that her condition was stable at the time of the hearing, the trial court
could consider that only 18 months had elapsed between the signing of the divorce decree and
the hearing on the motion to modify and could reasonably infer that having a “couple of
surgeries” during that time period could have impacted Toomey’s financial circumstances at the
time of the hearing. Based on the record presented, we overrule Melton’s arguments regarding
the trial court’s denial of his motion to modify with regard to the child support.
Melton also argues the trial court abused its discretion in failing to order Toomey to pay
for L.M.’s health insurance. Melton cites no support for his contention other than section
154.064 of the Family Code which states that the child support guidelines “are based on the
assumption that the court will order the obligor to provide medical support for the child in
addition to the amount of child support calculated in accordance with those guidelines.” TEX.
FAM. CODE ANN. § 154.064 (West 2008). However, this statutory provision simply explains that
if a trial court orders an obligor to pay for medical support, such payments are in addition to any
amount of child support the obligor is required to pay. Therefore, section 154.064 provides no
support for Melton’s contention that the trial court abused its discretion in denying his motion to
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modify. See TEX. R. APP. P. 38.1(i) (providing brief must contain appropriate citations to
authorities to support argument).
Even if we were to consider section 154.182 of the Family Code, which does address the
provision of health care coverage for a child, the statute requires the trial court to consider the
“actual cost of health insurance” and states that payments cannot exceed “a reasonable cost to the
obligor.” TEX. FAM. CODE ANN. § 154.182(b-1) (West Supp. 2010). The reporter’s record in
this appeal contains no evidence of the “actual cost of health insurance.” Moreover, in
calculating a “reasonable cost” to the obligor, the trial court would need to have been presented
evidence of the obligor’s annual resources. See id. at § 154.182(b-1), 154.181(e); see also In re
H.J.W., 302 S.W.3d 511, 515 (Tex. App.—Dallas 2009, no pet.) (referring to trial court’s need to
consider party’s ability to pay medical support before ordering him to do so). Once again,
however, the reporter’s record filed in this appeal did not contain any such evidence. As the
movant, Melton had the burden to present evidence to establish his entitlement to the relief he
sought. Cameron, 158 S.W.3d at 682. Based on the appellate record presented in this case, the
trial court did not abuse its discretion in denying Melton’s motion to modify with regard to
health insurance.
CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
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