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applying section 231.211 to the assessment of appellate costs against party to whom the Title IV–D agency had provided services
Summary of this case from In re Interest of C.Y.K.S.Opinion
No. 05-10-01488-CV
Opinion filed November 9, 2011.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-53681-00.
Before Justices MOSELEY, LANG, and MYERS.
MEMORANDUM OPINION
John Paul Deltuva (Father) appeals the trial court's order of August 23, 2010, denying his motion to modify child support order and confirming arrearages in child support. Appellees are the Office of the Attorney General (OAG) and Barbara Deltuva (Mother). We reverse the trial court's order and remand the cause for reconsideration of Father's motion.
I. Background
Father's child support obligation was originally established in a divorce decree dated February 18, 2002. After appeal to this Court, Father's child support obligation was modified in an order dated November 10, 2004, entitled, "Interlocutory Order in Suit to Modify Parent-Child Relationship." On June 29, 2009, Father moved to modify "the Final Decree of Divorce signed on February 18, 2002" and the "Order on Petition for Enforcement of Child Support Spousal Maintenance signed on July 21, 2005," which Father described as setting forth a schedule for payment of arrearages. The July 21, 2005 order is not included in the record. In his motion to modify, Father contended "the circumstances of the children and the Joint Managing Conservators have materially and substantially changed since the rendition of the order." Father's motion was denied by the trial court after a hearing on August 16, 2010, and was reduced to written order on August 23, 2010. In a single issue, Father contends the trial court abused its discretion in denying his motion to modify.
II. Standard of Review
We review a trial court's decision to modify child support or conservatorship under an abuse of discretion standard. In re C.C.J., 244 S.W.3d 911, 917 (Tex. App.-Dallas 2008, no pet.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Id.
Under an abuse of discretion standard, legal and factual insufficiency issues are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. Id. We review the evidence in the light most favorable to the order and indulge every presumption in favor of the trial court's ruling. Id. If some probative and substantive evidence supports the order, there is no abuse of discretion. Id.
III. Applicable Law
The trial court may modify a previous child support order if "the circumstances of the child or a person affected by the order have materially and substantially changed" since the date of the order's rendition. Tex. Fam. Code Ann. § 156.401(a)(1) (West 2008). In determining whether there has been a material and substantial change in circumstances, it is well-settled that the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought. See In re C.C.J., 244 S.W.3d at 917 (citing cases). The record must contain both historical and current evidence of the relevant person's financial circumstances. Id. at 917-18. Without both sets of data, the court has nothing to compare and cannot determine whether a material and substantial change has occurred. Id. at 918. The movant has the burden to show the requisite material and substantial change in circumstances since the entry of the previous order. Id.
IV. Application of Law to Facts
Father's motion to modify alleged that material and substantial change had occurred since the parties' original divorce decree on February 18, 2002, and since a July 21, 2005 order setting a schedule for payment of arrearages. As noted above, Father's current child support obligation was set in a November 10, 2004 order. At the hearing respecting the matter before us, however, OAG and Mother argued that the trial court could only consider whether there had been a material change in circumstances since August 12, 2008, not any of the earlier dates. OAG and Mother contended that August 12, 2008 was the relevant date because the trial court had denied an earlier motion to modify by Father on that date. The trial court sustained objections by Mother and OAG to Father's questions regarding any earlier time period:
[MOTHER]: Your Honor, I continue to object that he continues in the same line of questioning that's no longer relevant, 2002, when six or seven modification hearings and two appeals have transpired since that date.
THE COURT: Sustained. Mr. Deltuva, what we're looking at here is the last order that was entered and how much child support you were ordered to pay at that time and what circumstances have changed since the entry of that order. That's what I —
[FATHER]: My employment. So the evidence that I produced today is a new court order showing that I must pay 178.27 for the next six years and new employment of 36,000, which I'm currently employed and being garnished monthly and —
THE COURT: Well, the issue is the last order that was entered by —
[FATHER]: Right. So I've produced all the evidence that I'm going to produce and no further questions.
Later in the hearing, the court sustained similar objections:
THE COURT: Well, the issue is what has changed since August of 2008. The evidence here today that Ms. Deltuva testified to was that your income is the same today as it was back in August of 2008. What has changed since that entry of that order?
[FATHER]: The last time I was in court I was unemployed and I was collecting $364 weekly and —
[MOTHER]: Your Honor, I object. He's going back further in history.
THE COURT: Sustained.
OAG moved for directed verdict, arguing Father "failed to show that there's been a material and substantial change of circumstances since the last order of the court, which was actually signed in August of 2008." The trial court granted the motion, and at Father's request, also entered findings of fact and conclusions of law. The trial court found:
1. Since the entry of the "Final Decree of Divorce" on February 18, 2002, the Petitioner has filed three motions seeking to reduce his child support. Each of those motions was denied by Court, with the most recent order dated August 12, 2008.
2. The Petitioner, by way of his motion to modify, sought modification of the child support provisions of the orders dated February 18, 2002 and July 21, 2005. No request was made to modify the most recent order, dated August 12, 2008.
3. No evidence was presented to the Court to prove that there was a material and substantial change in the financial circumstances of the children or the affected parties at the time the existing support order was entered in 2008 and with their circumstances at the time of the hearing.
On appeal, relying on In re G.J.S., 940 S.W.2d 289, 292-93 (Tex. App.-San Antonio 1997, no writ), and similar cases, OAG concedes that the trial court erred by using August 12, 2008, as the date from which to determine whether a material and substantial change in circumstances had occurred. The court in G.J.S. concluded that the date of an original child support order, rather than the date of a denial of a motion to modify, was the correct date from which to determine whether a material and substantial change in circumstances had occurred. In re G.J.S., 940 S.W.2d at 292-93. The court reasoned that the denial of a motion to modify "merely continued the obligations established in the original child support order." Id. at 292. The court explained that the purpose of the statute was to allow for modification of child support "in situations where a substantial change in circumstances or resources renders the current amount of child support unfeasible." Id. The court concluded, "[w]hether such a situation exists can be determined only when the circumstances existing at the time the current amount of child support was ordered are compared to the present circumstances." Id.
We agree with OAG's argument that Father should be allowed "the opportunity to show a material and substantial change during the proper time period, beginning no sooner than the 2004 order." In reaching our conclusion, we note that on remand, the trial court's inquiry does not include revisiting whether the original amount of child support Father was ordered to pay was incorrectly determined. Father must offer "both historical and current evidence of the relevant person's financial circumstances," and bears the burden of proving a material and substantial change. See In re C.C.J., 244 S.W.3d at 917-18. The record of the hearing reflects that in addition to proving his current financial circumstances, Father was attempting to prove that the original child support order was incorrect, and that he has been unable to meet his child support obligations since before the divorce decree was entered. Father argued that the amount of child support he has been required to pay has been based on a jury's 2001 erroneous finding that he was capable of earning $125,000 per year. Father summed up his motion as follows:
In a previous appeal, we rejected Father's argument that there was insufficient evidence to support this finding. See Deltuva v. Deltuva, 113 S.W.3d 882, 886 (Tex. App.-Dallas 2003, no pet.).
So all I ever asked was that child support be based on my actual earnings and that's never occurred. So based on the jury's finding that I'm capable of earning 125,000 — I don't own an optical business. I haven't owned an optical business for years and it's just like saying, you know, someone — an employee is going to make what a business owner does in this economy. So there's been a change of circumstances for years that the court has ignored and I just haven't been treated fairly and I've been ruined financially.
We have considered and affirmed Father's child support obligations, or his failure to meet them, in three previous appeals. See Deltuva v. Deltuva, 113 S.W.3d 882, 886 (Tex. App.-Dallas 2003, no pet.) (evidence supported order that Father pay $1,800 in monthly child support, based on jury's finding that Father was capable of earning $125,000 per year); Deltuva v. State, No. 05-05-01325-CR, 2007 WL 1054134 (Tex. App.-Dallas Apr. 10, 2007, no pet.) (not designated for publication) (affirming Father's conviction for criminal nonsupport of his three children and concluding evidence was sufficient to support jury's rejection of Father's affirmative defense of inability to pay); and In re J.D.D., 242 S.W.3d 916, 920-22 (Tex. App.-Dallas 2008, pet. denied) (previous motion to modify; Father failed to meet burden of proving material and substantial change in circumstances since November 10, 2004 order; evidence supported finding that Father was intentionally unemployed). The issue before the trial court is whether Father's circumstances have changed in the relevant time period, not whether the original amount of child support was incorrectly determined.
IV. Conclusion
We decide Father's sole issue in his favor. We reverse the trial court's order and remand the cause for reconsideration of Father's motion. No costs of this appeal shall be assessed against the OAG or against Mother. See Tex. Fam. Code Ann. § 231.204 (West 2008) (appellate court may not charge Title IV-D agency any filing fee or other costs payable to clerk of appellate court); see also Office of Attorney General of Texas v. Lee, 92 S.W.3d 526, 528-29 (Tex. 2002) (per curiam) (section 231.204 prohibited appellate court from collecting fees from Attorney General); and Tex. Fam. Code Ann. § 231.211(a) (West 2008) (court may not assess court costs against any party to whom Title IV-D agency has provided services). Father shall bear his own costs of this appeal.