Matthew A. Matthews v. Elizabeth McCall Northrup ( 2010 )

Opinion issued January 14, 2010

  In The  

Court of Appeals  

For The  

First District of Texas  

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  NO. 01-09-00063-CV

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MATTHEW A. MATTHEWS, Appellant

V.

ELIZABETH MCCALL NORTHRUP, Appellee  

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  On Appeal from the 245th District Court

Harris County, Texas

Trial Court Cause No. 2007-74804  

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MEMORANDUM OPINION

          Appellant, Matthew A. Matthews, challenges the trial court’s October 14, 2008 Final Order in Suit Affecting the Parent-Child Relationship, in which the trial court ordered that Matthews pay child support to appellee, Elizabeth McCall Northrup. In one issue, Matthews contends that the “trial court erred in including as income for the purposes of child support funds of the KLM Family Limited Partnership Revocable Management Trust.”

          We affirm.  

Background

          Matthews filed his Original Petition in Suit Affecting the Parent-Child Relationship seeking joint managing conservatorship of the minor child S.A.M. and a determination of his child support obligation. The parties stipulated to all facts, including income Matthews actually received as salary from his job, but disagreed as to whether or not the trial court could consider “phantom” income in determining the amount of child support. This “phantom” income was allocated to Matthews as a limited partner in the KLM Family Partnership, Ltd. (the “Partnership”) for federal income tax purposes, but it was not actually received by him. Matthews’s mother, Leann Matthews (“Mother”), created the Partnership as a way to preserve family assets. The Partnership named two limited partners whose initial contributions were gifted by Mother: (1) Matthews, with a 48.33% partnership interest and (2) his sister, Kaci Ann Matthews, with a 49.67% partnership interest.   

          Mother also created the KLM Family Partnership, Ltd. Revocable Management Trust (the “Trust”), naming herself as Trustee and lifetime beneficiary and the limited partners in the Partnership as beneficiaries at her death. She funded the Trust with ten dollars and the General Partner Interest in the Partnership, i.e., the remaining 2% interest. She named the Trust as the General Partner for the Partnership.  

          Matthews’s 2005 and 2006 federal tax returns reflected that he was allocated and paid taxes on income from the Partnership. However, neither the Trust nor the Partnership had made any actual distributions of money to Matthews as of the date of trial.   

          The trial court entered its Final Order in Suit Affecting the Parent-Child Relationship, indicating that “no record of testimony was requested or made” for the hearing. The trial court found that “the amount of net resources available to [Matthews] per month from his employment is $4,433” and “the amount of net resources available to [Matthews] from the KLM Revocable Management Trust is an amount of at least $2,500.” The court ordered Matthews to pay child support in the amount of 20% of $6,933 equaling $1,386.66 per month.     

Waiver

          In his sole issue, Matthews argues that the trial court erred in including income from the Trust in the net resources it used to calculate his child support obligation because, under the Trust provisions, Mother is the lifetime beneficiary of the Trust and Matthews “is not now and as long as the Mother is alive will not become a beneficiary of the trust.” He also argues that because “the erroneous inclusion of non-existent funds in the calculation of child support caused the award of support . . . to depart substantially from the guidelines,” the trial court abused its discretion by not “making the findings required by the Texas Family Code.” See Tex. Fam. Code Ann. § 154.130(a)(3) (Vernon Supp. 2009) (“. . . in rendering an order of child support, the court shall make the findings required by Subsection (b) if . . . the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines . . .”). He further argues that if this Court determines that the trial court made a mistake in identifying the entity from which the “phantom” funds were allocated as the Trust instead of the Partnership, the trial court abused its discretion in deeming “one hundred percent value on the [P]artnership profits” because there is no evidence that his Partnership interest has any value while Mother is alive.

          The issue presented is whether the gift of an interest in the Partnership, which has not and will not distribute any profits to its partners, including Matthews, until after the death of the trustee-general partner or the year 2052, although the partners must yearly report profits from the Partnership on their individual federal income tax returns, is an “asset that [does] not currently produce income such that the trial court could “assign a reasonable amount of deemed income” to the asset. The trial court apparently found that Matthews had deemed income of $2,500 per month based on the stipulations of income from his federal income tax returns.

          We are unable to address Matthews’s issue because of an insufficient record on appeal. The clerk’s record and the reporter’s record provided to this Court contain no agreed statement of facts, testimony, or other evidence on the issue of the amount of child support calculated by the trial court. Matthews admitted in his brief that the stipulations and other exhibits offered by the parties at the July 28, 2008 hearing were not handed to the court reporter. Neither Matthews’s 2005 and 2006 federal income tax returns nor the tax returns for the Partnership showing the “value of the [P]artnership profits” are in the record. On November 17, 2009, this Court ordered the clerk to supplement the record with the briefing the parties provided to the trial court, and referenced by Matthews in his appellate brief, on the issue of the “phantom” income. This Court further ordered the court reporter to provide the exhibits from the hearing. Neither party’s trial brief included in the supplemental clerk’s record had as an attachment the stipulations mentioned by Matthews or his 2005 and 2006 federal income tax returns or those of the Partnership. The court reporter confirmed that no exhibits were admitted at the hearing.

          Matthews’s request for the reporter’s record indicates that he requested the “entire trial record” and all exhibits for the “trial held October 14, 2008.” (emphasis added). However, the court reporter provided the record for the July 28, 2008 hearing, but it contained only the argument of the parties. The trial court’s Final Order in Suit Affecting the Parent-Child relationship issued on October 14, 2008 indicated that “no record of testimony was requested or made.” The Family Code provides that “[a] record shall be made as in civil cases generally unless waived by the parties with the consent of the court.” Tex. Fam. Code Ann. § 105.003(c) (Vernon 2008). Although the trial court’s order does not say that Matthews “waived” the making of a record at the October 14, 2008, “[a] party . . . may waive the making of a record either by express written agreement or by failing to object to the lack of a record during the hearing.” In re D.J.M., 114 S.W.3d 637, 639 (Tex. App.—Fort Worth 2003, pet. denied). The record does not show that Matthews objected to the the statement in the trial court’s October 14, 2008 order that “no record was requested or made.”

          Matthews did not supplement his pleadings in the trial court to include the stipulations, which would have then been a part of the clerk’s record. It is true that “[an appellate] court will accept as true the facts stated unless another party contradicts them,” but “[t]he statement must be supported by record references.” Tex. R. App. P. 38.1(g). Here, while Matthews’s statement of the facts in his appellant’s brief is uncontradicted by Northrup, who failed to file an appellee’s brief, none of his record references shows that the trial court deemed “one hundred percent value on the partnership profits” in calculating Matthews’s child support obligation. Matthews cites to the trial transcript, which includes only the argument of counsel, the Trust and the Partnership documents, the parties’ trial briefs, and the affidavits supporting those briefs, but these items are either not evidence or contain no evidence of the amount of Matthews’s allocated income from the Partnership. Dunn v. Dunn, 177 S.W.3d 393, 397 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (stating arguments of counsel are not evidence). Points of error dependent on the state of the evidence cannot be reviewed absent a complete record. Dob’s Tire & Auto Ctr. v. Safeway Ins. Agency, 923 S.W.2d 715, 720 (Tex. App.—Houston [1st Dist.] 1996, writ dism’d w.o.j.). The burden is on the party appealing from a judgment to see that a sufficient record is presented to show error requiring reversal. Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam). If a party does not meet his burden and raises a point of error on appeal that involves matters omitted from the record, his actions prevent an appellate court from adequately addressing the issue. Aguero v. Aguero, 225 S.W.3d 236, 237 (Tex. App.—El Paso 2006, no pet.). Because Matthews has not supplied this Court with a statement of facts with which to review the trial court’s determination of deemed income from the Partnership in calculating his child support obligation, we hold Matthews has waived review of his issue.  

          We overrule Matthews’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Jennings, Higley, and Sharp.