Opinion
02-23-00180-CV
01-25-2024
In the Interest of K.G., a Child
On Appeal from the 393rd District Court Denton County, Texas Trial Court No. 21-4238-393
Before Womack, Wallach, and Walker, JJ.
MEMORANDUM OPINION
DANA WOMACK, JUSTICE
I. Introduction
Kenneth Ivy, appearing pro se, appeals the trial court's order denying his motion to modify his child support obligation. We affirm.
II. Background
In May 2021, the Office of the Texas Attorney General (OAG) filed a Petition to Establish the Parent-Child Relationship. In its petition, OAG asked the trial court, among other things, to determine the parentage of K.G., a minor child, and to "order appropriate current and retroactive child, medical, and dental support."
Because K.G. is a minor, we refer to her and her mother by their initials. See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2).
On January 4, 2023, the trial court held a hearing on the relief requested in OAG's petition. OAG and K.G.'s mother, S.G., appeared at the hearing, but Ivy- despite having been "duly notified"-failed to appear. Accordingly, the trial court signed a default order finding that Ivy is K.G.'s biological father and ordering him to pay child, medical, and dental support. As reflected in the order, the trial court found that Ivy's "gross monthly resources" were $5,000 per month and, based on that finding, ordered him to pay $790 per month in child support, $188 per month in medical support, and $31 per month in dental support. The trial court also found that Ivy owed retroactive child support in the total amount of $33,024 for the period of May 2017 to January 2023 and ordered him to pay $300 per month towards this arrearage. Thus, in total, the trial court ordered Ivy to pay $1,309 in monthly support for K.G.
Rather than file a timely motion for new trial to explain his failure to appear at the January 4, 2023 hearing and to contest the trial court's finding concerning his monthly income, Ivy filed a motion to modify the child support order on January 20, 2023. In his motion, Ivy claimed that his income had "substantially . . . decreased since the date of the current child support order," which had been signed just sixteen days earlier. He did not deny that he had been properly served or that he had received notice of the January 4 hearing; rather, he explained that he had made "a[n] honest mistake" by believing that the notice referred to "just another Zoom meeting and not a court date."
On May 4, 2023, the trial court held a hearing on Ivy's modification motion. At the hearing, Ivy argued that the January 4 default order "doesn't reflect the reality of what [he] actually make[s]." To support his argument that the January 4 order overstated his income, Ivy relied on uncertified copies of his 2020 and 2021 tax returns that he had attached to his motion and offered an uncertified copy of his apartment lease. The trial court also heard testimony regarding Ivy's work as an author, "aspiring literary agent," CEO of a nonprofit, and podcaster.
At the conclusion of the hearing, the trial court determined that the evidence showed that Ivy had "other sources of income that are not totally reflected in the records before the Court" and found that Ivy's income had not materially or substantially changed since the default order was signed on January 4, 2023. Accordingly, the trial court denied Ivy's modification motion. This appeal followed.
III. Discussion
A. The Trial Court Did Not Abuse Its Discretion by Denying Ivy's Modification Motion
In his first issue, Ivy asserts that the trial court erred by denying his motion to modify the January 4, 2023 child support order. We disagree.
Ivy enumerates five issues in his brief, but his first, third, and fourth issues all present the same legal question: whether the trial court erred by denying Ivy's motion to modify the January 4, 2023 default order. Thus, we will treat these issues as a single complaint. See Espey v. Crown Mins. Co., No. 09-93-053-CV, 1994 WL 503969, at *3 (Tex. App.-Beaumont Sept. 15, 1994, writ dism'd by agr.) (not designated for publication) (treating separate points of error as a single complaint); see also McKinney v. Meador, 695 S.W.2d 812, 813 (Tex. App.-Tyler 1985, writ ref'd n.r.e) (combining all of appellant's points addressing separate elements of prejudgment interest claim and treating them as one challenge to the propriety of awarding prejudgment interest).
1. Applicable Law and Standard of Review
A trial court may modify a child support order if the circumstances of the child or a person affected by the order have materially and substantially changed since the previous child support order was rendered. Tex. Fam. Code Ann. § 156.401(a)(1)(A). The person seeking modification has the burden of establishing a material and substantial change. In re A.A.T., 583 S.W.3d 914, 920 (Tex. App.-El Paso 2019, no pet.); Cameron v. Cameron, 158 S.W.3d 680, 682 (Tex. App.-Dallas 2005, pet. denied).
In determining whether there has been a material and substantial change in circumstances, 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 of the modification trial. In re R.R.K., No. 02-20-00302-CV, 2022 WL 1257136, at *5 (Tex. App.-Fort Worth Apr. 28, 2022, no pet.) (mem. op.); In re J.D.M., 221 S.W.3d 740, 744 (Tex. App.-Waco 2007, no pet.); London v. London, 192 S.W.3d 6, 15 (Tex. App.-Houston [14th Dist.] 2005, pet. denied); In re J.R.D., 169 S.W.3d 740, 743-44 (Tex. App.-Austin 2005, pet. denied). Unless the record contains both historical and current evidence of the relevant person's financial circumstances, the court has nothing to compare and cannot determine whether a material and substantial change has occurred. London, 192 S.W.3d at 15.
The court retains broad discretion in making the equitable decision of whether to modify a support order. A.A.T., 583 S.W.3d at 920. Thus, we will not disturb an order regarding child support on appeal unless the complaining party can show a clear abuse of discretion. Id. A trial court abuses its discretion if it acts arbitrarily or unreasonably or does not analyze or apply the law properly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
2. Application to Present Case
On the record before us, we cannot conclude that the trial court abused its discretion by denying Ivy's modification motion. As the movant, Ivy bore the burden to show a material and substantial change in circumstances between January 4, 2023 (the date that the child support order was signed), and May 4, 2023 (the date of the hearing on Ivy's modification motion). See A.A.T., 583 S.W.3d at 920; Cameron, 158 S.W.3d at 682. But the evidence that Ivy presented-including his 2020 and 2021 tax returns and his apartment lease-bore little, if any, relevance to this all-important issue. Without sufficient evidence showing how Ivy's financial circumstances had changed during the relevant time period, the trial court had no statutory grounds for granting the requested relief. See In re C.C.J., 244 S.W.3d 911, 917-18 (Tex. App.- Dallas 2008, no pet.) ("The record must contain both historical and current evidence of the relevant person's financial circumstances. Without both sets of data, the court has nothing to compare and cannot determine whether a material and substantial change has occurred." (citing London, 192 S.W.3d at 15)). Thus, the trial court properly exercised its discretion by denying Ivy's modification motion.
Ivy's contention appeared to be that the trial court's original finding that Ivy earned $5,000 per month was erroneous, not that Ivy's circumstances had substantially and materially changed since the child support order was signed. The proper vehicle for raising this issue would have been a motion for new trial, not a motion to modify the child support order. See Tex.R.Civ.P. 320. Although OAG agreed to allow the trial court to treat Ivy's modification motion as a motion for new trial, Ivy was adamant that he did not want a new trial, and the trial court clearly stated that it would not treat Ivy's motion as a motion for new trial because it did not comply with the deadlines applicable to such motions. See Tex.R.Civ.P. 329b. Because Ivy was-metaphorically speaking-attempting to fit a round peg into a square hole, the arguments and evidence he presented did not support the relief he had actually requested.
We overrule Ivy's first issue.
B. Ivy Failed to Preserve His Complaint Regarding OAG's Statements
In his second issue, Ivy asserts that the trial court erred "when it allowed testimony and unreliable statements from [OAG]" at the hearing on Ivy's modification motion. Ivy bases his complaint on the following exchange between the trial court and OAG:
THE COURT: .... There's a 50 percent rule in the Family Code. But does that apply to just current or all forms of income?
[OAG]: The 50 percent rule in the Family Code, Your Honor, applies to what an employer can legally withhold. A Court can order any amount of child support, but the employer can only withhold 50 percent. And the obligor at that point is obligated to pay the rest just out of pocket by themselves.
THE COURT: All right. That's why I wanted to -- some of these nuances of the child -- I'm talking to a person who deals with it daily. I do, too, but rarely do we get into the nitty gritty to this detail.
Ivy contends that OAG's statements "misled" the trial court. But Ivy failed to preserve this complaint for our review.
Normally, to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling. See Tex.R.App.P. 33.1(a); Haryanto v. Saeed, 860 S.W.2d 913, 918 (Tex. App.-Houston [14th Dist.] 1993, writ denied) (concluding that appellant failed to preserve error because he did not object to statements and questions made by appellee's counsel during voir dire). If a party fails to do this, error is not preserved, and the complaint is forfeited. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g).
Ivy did not object in the trial court to OAG's statements above. Thus, he failed to preserve any error pertaining to these statements and has forfeited his complaint. See Tex.R.App.P. 33.1; Bushnell, 803 S.W.2d at 712; see also Fed. Deposit Ins. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012) ("When a party fails to preserve error in the trial court or waives an argument on appeal, an appellate court may not consider the unpreserved or waived issue.").
Even if Ivy had preserved his complaint, we would overrule it on the merits. Ivy has not identified any specific flaws in OAG's summary of the Family Code's "fifty percent rule," and OAG's statement appears to be correct as far as it goes. See Tex. Fam. Code Ann. § 158.009. Rather, Ivy's complaint seems to be that OAG did not-in addition to answering the trial court's question-state for the record the statutory child support guidelines. See id. § 154.125. But the trial court's question strictly addressed the "fifty percent rule" and did not pertain to these guidelines. The trial court is presumably aware of the child support guidelines, and Ivy has not shown how OAG's failure to reference them in its response to the trial court's question about the "fifty percent rule" misled the trial court.
Accordingly, we overrule Ivy's second issue.
C. Ivy's Final Issue Lacks Merit
In his final issue, Ivy contends that the trial court erred by ordering him to pay monthly support obligations totaling fifty percent of what the trial court conservatively estimated to be Ivy's minimum income-and one hundred percent of what Ivy claimed was his actual income. This argument, which is based on a fundamental misunderstanding of the trial court's ruling, is meritless.
The trial court did not, as Ivy claims, order him to pay fifty percent of his wages. Rather, after finding that Ivy's circumstances had not materially and substantially changed since the child support order was signed, the trial court attempted to determine whether "there might be some equitable basis" to modify Ivy's support obligations. As part of its equitable analysis, the trial court conservatively estimated Ivy's income based on the evidence in the record and then, using the so-called "fifty percent rule" as a yardstick, compared Ivy's estimated income with his support obligations. Because the trial court determined that (1) Ivy's support obligations were less than fifty percent of his conservatively estimated income and (2) the evidence suggested that Ivy had "other sources of income that [were] not totally reflected in the records before the Court," it concluded that there was no equitable basis for granting Ivy's modification motion.
See Tex. Fam. Code Ann. § 158.009 ("An order or writ of withholding shall direct that any employer of the obligor withhold from the obligor's disposable earnings the amount specified up to a maximum amount of 50 percent of the obligor's disposable earnings.").
As stated above, a trial court has broad discretion in making the equitable decision of whether to modify a child support order. A.A.T., 583 S.W.3d at 920. On the record before us, we cannot conclude that the trial court abused its discretion by determining that there were no equitable grounds for granting Ivy's modification motion.
We overrule Ivy's final issue.
IV. Conclusion
Having overruled all of Ivy's issues, we affirm the trial court's order denying Ivy's modification motion.