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holding in review of modification order that trial court as fact finder is afforded great latitude in determining child's best interest with respect to child support
Summary of this case from In re ofOpinion
No. 04-15-00071-CV
12-30-2015
IN THE INTEREST OF E.R.T., a Child
MEMORANDUM OPINION
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-CI-12387
Honorable Cathleen M. Stryker, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice AFFIRMED
Appellant Rosalynda Hernandez Todd appeals the trial court's order denying her request to modify the amount of child support appellee Ryan A. Todd is required to pay with regard to their child E.R.T. In her brief, Rosalynda lists five broad issues for review; however, those issues are narrowed by the arguments made in her brief to the following: (1) whether the trial court erred in calculating Ryan's net resources; (2) whether the trial court erred in failing to provide its reasons for deviating from the child support guidelines; and (3) whether the trial court abused its discretion in denying Rosalynda's request for a modification because the amount of child support Ryan was paying deviated from the child support guidelines. Because the issues in this appeal are settled by well-established precedent, we overrule Rosalynda's issues and affirm the trial court's order. See TEX. R. APP. P. 47.4.
The trial court's order was entered after a de novo review of an associate judge's order. Although the underlying action was originally instituted by the Attorney General, Rosalynda personally appealed the associate judge's order.
Although Rosalynda asserts five broad issues, she does not separately brief her arguments in relation to each issue. "An issue is multifarious when it generally attacks [a] trial court's order with numerous arguments." Hamilton v. Williams, 298 S.W.3d 334, 338 n.3 (Tex. App.—Fort Worth 2009, pet. denied). "We may disregard any assignment of error that is multifarious." Id.; see also Shull v. United Parcel Serv., 4 S.W.3d 46, 51 (Tex. App.—San Antonio 1999, pet. denied). "Alternatively, we may consider a multifarious issue if we can determine, with reasonable certainty, the error about which complaint is made." Hamilton, 298 S.W.3d at 338 n.3; see also Shull, 4 S.W.3d at 51. Having reviewed the argument section of Rosalynda's brief, we have identified, with reasonable certainty, the three above-referenced issues as the errors about which Rosalynda is complaining. --------
MISCALCULATION OF NET RESOURCES
Rosalynda generally contends the trial court erred in calculating Ryan's net resources. However, the only specific challenge she makes to the trial court's calculation is an assertion that the court failed to include the amount of Ryan's bonus. Section 154.062(b)(1) of the Texas Family Code defines resources as including all wage and salary income and other compensation for personal services, including bonuses. TEX. FAM. CODE ANN. § 154.062(b)(1) (West Supp. 2015). Rosalynda's argument, however, mistakenly asserts the trial court did not include Ryan's bonus in calculating his net resources. The trial court's findings of fact and conclusions of law expressly state:
2. That the net resources of obligor, RYAN A. TODD ("Respondent" or "obligor"), per month are approximately [stated dollar amount omitted for privacy purposes], in addition to an anticipated year-end bonus of (gross) [stated dollar amount omitted for privacy purposes].Accordingly, this issue is overruled.
REASONS FOR DEVIATING FROM GUIDELINES
Rosalynda next contends the trial court erred by failing to provide its reasons for deviating from the child support guidelines. Section 154.123(b) of the Texas Family Code lists various factors a trial court may consider in determining whether the application of the child support guidelines would be unjust or inappropriate. TEX. FAM. CODE ANN. § 154.123(b) (West 2014). The trial court's findings of fact and conclusions of law expressly list several of these factors as reasons for deviating from the child support guidelines, including:
(1) time of possession - the trial court's findings state Ryan has possession 47% of nights, in contrast to 24% of nights for an obligor under a standard possession order; see id. at § 154.123(b)(4);Accordingly, Rosalynda's contention that the trial court failed to provide reasons for deviating from the child support guidelines is overruled.
(2) amount of the obligee's net resources including whether the obligee is intentionally unemployed - the trial court's findings state Rosalynda ceased employment with the federal government in August of 2013 when she gave birth to a child with her new husband and has had no job interviews and has remained voluntarily unemployed since leaving that employment; see id. at § 154.123(b)(5);
(3) child care expenses incurred by either party in order to maintain gainful employment - the trial court's findings state Ryan pays for all after-school care expenses when E.R.T. is in his possession; see id. at § 154.123(b)(6);
(4) whether the obligee has an automobile, housing, or other benefits furnished by another person - the trial court's findings state Rosalynda resides with her new husband in a home with an appraised value of approximately $274,000.00; see id. at § 154.123(b)(10);
(5) provision for health care insurance - the trial court's findings state Ryan assumed the cost of medical/dental/vision insurance for E.R.T. in September of 2013, and "has maintained it since"; see id. at § 154.123(b)(12);
(6) positive cash flow from any real property - the trial court's findings state Rosalynda owns real property with an appraised value of approximately $100,000.00, which she leases to a third party, and also owns another tract of real property with an appraised value of approximately $300,000.00; see id. at § 154.123(b)(15); and
(7) any other reason consistent with the best interest of the child - the trial court's findings state E.R.T.'s needs are being met and the variance from the guidelines is in E.R.T.'s best interest; see id. at § 154.123(b)(17).
DENIAL OF REQUEST TO MODIFY
Rosalynda finally contends the trial court erred in denying her request to modify the child support. Rosalynda specifically argues: (1) the evidence is insufficient to show she is voluntarily unemployed; and (2) Ryan's time of possession was a factor considered when his child support was initially set at 14% of his net resources, which is 6% less than the child support guidelines.
A trial court has broad discretion in determining whether to modify the amount of child support. In re C.H.C., 392 S.W.3d 347, 349 (Tex. App.—Dallas 2013, no pet.); TEX. FAM. CODE ANN. § 156.401(a) (West Supp. 2015) (providing trial court may modify an order providing for child support). A trial court's order on a motion to modify will not be disturbed on appeal absent a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re C.H.C., 392 S.W.3d at 349; In re S.B.C., 952 S.W.2d 15, 17 (Tex. App.—San Antonio 1997, no writ). "Under an abuse of discretion standard, legal and factual sufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion." In re C.H.C., 392 S.W.3d at 349; see also Brejon v. Johnson, 314 S.W.3d 26, 30 (Tex. App.—Houston [1st Dist.] 2009, no pet.). "The trial court is in the best position to observe the witnesses' demeanor and assess their credibility; therefore, as the fact finder, [the trial court] is given great latitude in determining the children's best interests with respect to child support." In re S.M.B., No. 04-10-00115-CV, 2011 WL 2238222, at *2 (Tex. App.—San Antonio June 8, 2011, no pet.) (mem. op.). If some probative and substantive evidence supports the trial court's decision, the trial court has not abused its discretion. In re C.H.C., 392 S.W.3d at 349; In re S.B.C., 952 S.W.2d at 18.
As previously noted, the trial court found seven reasons for deviating from the child support guidelines. In her brief, Rosalynda challenges only two of those reasons. Rosalynda does not explain how the trial court would have abused its discretion in deviating from the child support guidelines if the evidence only supported the other five reasons. Therefore, she has not shown the existence of an abuse of discretion.
In addition, the evidence in this case supports the trial court's finding that Rosalynda was voluntarily unemployed. The hearing in the underlying cause was held on October 30, 2014. In August of 2013, Rosalynda gave birth to a daughter with her new husband. Rosalynda testified she never returned to work after her daughter's birth or even went on a single job interview. Rosalynda testified that she has both bachelor's and master's degrees, and prior to taking maternity leave, Rosalynda was earning approximately $130,000 per year. Although Rosalynda testified the position she held with the federal government was relocated from San Antonio to Washington, D.C. while she was on maternity leave, Rosalynda did not explain how she is unqualified for any other position of employment with the federal government or other employer. Instead, Rosalynda stated she was currently staying at home with her daughter but "hope[d] to go back to the workforce at some point."
With regard to time of possession, Rosalynda argues time of possession was taken into consideration when the amount of child support was established in the original divorce decree. Because the original divorce decree was based on a mediated settlement agreement, the record does not establish the reasons the trial court originally approved an amount of child support that deviated from the child support guidelines. Even if time of possession was previously considered, Rosalynda does not explain the reason a trial court could not again consider this factor in determining whether application of the guidelines would be unjust or inappropriate, especially given that section 154.123(b)(4) of the Texas Family Code expressly allows the trial court to consider time of possession as a factor. See TEX. FAM. CODE ANN. § 154.123(b)(4) (West 2014).
CONCLUSION
The trial court's order is affirmed.
Luz Elena D. Chapa, Justice