Opinion
No. 04-05-00439-CV.
December 13, 2006.
Appeals from the 285th Judicial District Court, Bexar County, Texas Trial Court No. 1999-CI-00160 Honorable Barbara Hanson Nellermoe, Judge Presiding.
Opinion by: Phylis J. Speedlin, Justice Sitting: Alma L. López, Chief Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice.
MEMORANDUM OPINION
This case is before us on appellant's motion for rehearing. We deny appellant's motion for rehearing but withdraw our September 27, 2006 opinion and judgment and substitute this opinion and judgment in its place.
Donald G. Ruebenson, II appeals the trial court's denial of his motion to modify child support, alleging that the trial court abused its discretion in setting child support in excess of the statutory guidelines provided for by the Texas Family Code. In an opinion dated June 21, 2006, we abated this appeal to the trial court for the entry of findings of fact pursuant to section 154.130(b) of the Texas Family Code. See Tex. Fam. Code Ann. § 154.130(b) (Vernon 2002). The trial court has filed its findings with this court, and after consideration of the issues, we affirm the judgment of the trial court.
Background
Donald and Theresa Ruebenson were divorced in 1999. The parties are the parents of three children, including D.G.R., III, and twin daughters, Monica and Nicole, all of whom were minors at the time of divorce. In June 2001, the parties entered into an agreed order modifying the suit affecting the parent-child relationship. Nicole, then age fifteen, chose to live with her father, while Monica and D.G.R. resided with Theresa. Theresa's child support obligation was $892.40 per month and Donald's was $1049. After accounting for offsets and credits, Donald was ordered to pay Theresa $156 per month in child support. In June 2003, Theresa filed a petition to modify the suit affecting the parent-child relationship, and Donald subsequently filed a counter-petition. Temporary orders were entered naming Donald and Theresa joint managing conservators of all three children. While Nicole returned to her mother's home, D.G.R. decided to live with his father. Child support remained as ordered in June 2001.
On November 16, 2004, a hearing was held to enter final orders regarding the payment of child support and the custody of D.G.R. At the hearing, Donald testified that he was currently employed by his new wife as the office manager of her law practice in Bulverde earning $20,000 a year. Donald also testified that he received the use of an automobile provided by his employer. Theresa testified that office managers in Bulverde typically earn an annual salary of $48,000. Both Donald and Theresa testified that Donald had previously held jobs earning $92,000 and $150,000, respectively. Additionally, Theresa introduced an affidavit executed by D.G.R., who was then age fifteen, stating his preference to reside with his mother. After considering this testimony, the trial court denied Donald's verbal request for "retroactive child support." The trial court also appointed Theresa managing conservator of D.G.R. and ordered Donald to pay Theresa $630 a month in child support.
The twins turned 18 in March 2004 and graduated from high school in May 2004, and therefore were not subject to the November 2004 order.
Donald subsequently filed a "motion for rehearing," arguing that the trial court erred in ordering support in excess of the statutory guidelines. At the hearing on his motion for rehearing, Donald testified he was not intentionally underemployed and had attempted to find employment in the computer field. He stated that his lack of a college degree and the time he had spent out of the information technology field made it difficult for him to secure a higher paying job. Aside from modifying arrangements regarding the payment of health insurance premiums for D.G.R., the trial court denied Donald's motion for rehearing.
Discussion
In his first issue, Donald argues the trial court abused its discretion in setting child support in excess of the guidelines provided by the Texas Family Code. We review a trial court's award of child support for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re M.P.M., 161 S.W.3d 650, 654 (Tex.App.—San Antonio 2005, no pet.). Abuse of discretion does not exist as long as there is some evidence of a substantive and probative character to support the decision. Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex.App.-San Antonio 1995, writ denied). Because one minor child is at issue, the guidelines suggest Donald pay 20% of the first $6000 of his monthly net resources toward the support of the child. See Tex. Fam. Code Ann. § 154.125 (Vernon 2002). However, if the obligor's actual income is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the trial court may apply the support guidelines to the earning potential of the obligor. See Tex. Fam. Code Ann. § 154.066 (Vernon 2002); In re P.J.H., 25 S.W.3d 402, 405 (Tex.App.-Fort Worth 2000, no pet.).
In order for a court to find a parent intentionally underemployed or unemployed under section 154.066, there must be evidence the parent reduced his income for the purpose of decreasing his child support payments. Gaxiola v. Garcia, 169 S.W.3d 426, 432 (Tex.App.-El Paso 2005, no pet.); In re P.J.H., 25 S.W.3d at 405. There is no presumption that simply because a parent is no longer as lucratively employed as he was during his marriage, he is intentionally underemployed or unemployed. In re P.J.H., 25 S.W.3d at 406; DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.). The requisite intent, or lack thereof, however, may be inferred from such circumstances as the parent's business reversals, business background, and earning potential. In re P.J.H., 25 S.W.3d at 406; DuBois, 956 S.W.2d at 610 (citing Kish v. Kole, 874 S.W.2d 835, 839 (Tex.App.-Beaumont 1994, no writ)). A parent's right to pursue his or her own happiness must also be kept in mind. In re P.J.H., 25 S.W.3d at 406; DuBois, 956 S.W.2d at 610.
In this case, there was testimony that Donald had previously held jobs earning between $64,000 and $150,000. Donald testified that he has over twenty years' experience in the computer field. In particular, he is trained in the Unix computer system, which he stated is widely used across the United States. Theresa also testified that the typical office manager in Bulverde earns $48,000, even without a college degree. Although Donald argues that he has tried to find a higher-paying job, the fact finder is the sole judge of the credibility of witnesses and may decide whether to believe one witness rather than another. Norris v. Norris, 56 S.W.3d 333, 338 (Tex.App.-El Paso 2001, no pet.); In re P.J.H., 25 S.W.3d at 406; McCain v. McCain, 980 S.W.2d 800, 802 (Tex.App.-Fort Worth 1998, no pet.). From the evidence submitted at trial, the trial court could have reasonably believed that Donald was intentionally underemployed. We cannot say the trial court abused its discretion in finding Donald intentionally underemployed and ordering support according to his imputed income. Donald's first issue is overruled.
In his second issue, Donald complains the trial court abused its discretion in denying child support due to him during the period of "June 1, 2004 until November 16, 2004." Under the June 2001 child support order, after accounting for offsets and credits, Donald paid Theresa $156 per month until the twins turned 18 and graduated from high school in May 2004. At that time, D.G.R., who was 15 years old, continued to reside with Donald from June 2004 to November 16, 2004. On appeal, Donald complains the trial court erred in not awarding him child support from Theresa for that five-month period. Donald, however, never filed a motion to enforce the June 2001 child support order. In fact, at the November 16, 2004 hearing, the only live pleading before the court was Donald's counter-petition to modify the suit affecting parent-child relationship with respect to conservatorship, which did not include a request for enforcement of the existing child support order. At the hearing, Donald's attorney made a verbal request for "retroactive support," which was denied. Under section 154.009, the awarding of "retroactive" child support is left to the discretion of the trial court, and may be ordered if the nonpaying parent was not previously ordered to pay support and was not a party to a suit in which support was ordered. Tex. Fam. Code Ann. § 154.009(a) (Vernon 2002); Garza v. Blanton, 55 S.W.3d 708, 709 (Tex.App.-Corpus Christi 2001, no pet.). In his appellate brief, Donald concedes that he was not seeking "retroactive" support, but enforcement of the June 2001 support order.
At the November 16, 2004 hearing, Donald's attorney made a verbal request for "retroactive support," as follows: "Once the girls aged out, there is only support due for the one child, which would be [D.G.R.]. And so we would ask for some—instead of receiving support since the girls have aged out, there has been no support paid by anybody. So we would ask for retroactive support back to the time that the girls were emancipated, which was June 1, 2004, and that support be as per the guidelines, depending on how the Court works out [the] possession schedule and that mom continue to cover the child's health insurance."
A trial court's judgment must conform to the pleadings of the parties. Tex. R. Civ. P. 301; Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983). When there is an existing child support order, a party who is an obligee under the order may file a motion to enforce the order and seek a judgment confirming a child support arrearage. See Tex. Fam. Code Ann. § 157.001, 157.002(b) (Vernon 2002). Here, there was no pleading seeking to enforce Theresa's obligation to pay child support for D.G.R. to Donald pending before the trial court at the November 16, 2004 hearing. A party may not obtain a judgment on a theory not pleaded. See Stucki v. Stucki, No. 12-04-00290-CV, 2006 WL 2106969, at *5 (Tex.App.-Tyler Jul. 31, 2006, no pet.) (holding trial court did not abuse its discretion in failing to find an arrearage of child support where wife failed to plead for any arrearage); Affiliated Capital Corp. v. Musemeche, 804 S.W.2d 216, 219 (Tex.App.-Houston [14th Dist.] 1991, writ denied). Accordingly, we cannot say the trial court abused its discretion in declining to award Donald child support for the June to November 2004 period. Donald's issue is overruled.
Our opinion is not intended to preclude Donald from filing a motion for enforcement of child support to recoup any arrearage that may be owed to him. See Tex. Fam. Code Ann. § § 157.001-.002; 157.061 (Vernon 2002) (describing procedure for filing motion for enforcement, contents of motion, and setting hearing on motion).
Donald next argues that "the treatment of the child support issue as it is applied in this case violates equal protection under the Texas Constitution on the basis of sexual discrimination." Donald contends that "Texas appellate courts have held that fathers have more of a duty to support their children than their female counterparts" and "the number of cases showing fathers having to pay in excess of the guidelines greatly outweighs the number of cases where mothers are ordered to pay more than the statutory guidelines." The Family Code specifically prohibits discrimination based on the sex of the obligor, obligee, or child. Tex. Fam. Code Ann. § 154.010 (Vernon 2002). After a careful review of the record, we find there is nothing to support Donald's claim that the court imposed child support obligations upon him in violation of his constitutional rights. See In re J.R.D., 169 S.W.3d 740, 744-45 (Tex.App.-Austin 2005, pet. denied). The trial court found that Donald was intentionally underemployed. Upon a finding of intentional underemployment, the Family Code permits the trial court to order the obligor to pay child support according to his earning potential. Tex. Fam. Code Ann. § 154.066. Accordingly, Donald's claim that he was discriminated against on the basis of his gender is unfounded.
Finally, Donald contends the trial court erred in allowing Theresa to introduce a "controverting sworn statement at trial that contradicted the statement attached to the counter-petition for modification." At the November 16, 2004 hearing, Theresa introduced D.G.R.'s affidavit stating his preference to reside with his mother. See Tex. Fam. Code Ann. § 153.008 (Vernon Supp. 2006) ("[a] child 12 years of age or older may file with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court"). Donald specifically complains that D.G.R., a minor, is not competent to make an affidavit in this context. There is no requirement under section 153.008 that a writing by a child indicating choice of managing conservator be in affidavit form. See Turner v. Turner, 47 S.W.3d 761, 765 (Tex.App.-Houston [1st Dist.] 2001, no pet.). However, the statute does require that the child's choice of preference be submitted in writing. Donald does not cite to any cases stating that a minor cannot execute an affidavit in this context. In fact, in Boriack v. Boriack, 541 S.W.2d 237, 240 (Tex.Civ.App.-Corpus Christi 1976, writ dism'd), a 14-year-old boy's affidavit expressing his preference that he be placed in the custody of his father was properly entered into evidence. Accordingly, we cannot say the trial court erred in accepting D.G.R.'s affidavit.
Conclusion
The judgment of the trial court is affirmed.