Opinion
NO. 01-11-01096-CV
05-03-2012
CICILY JOSEPH, Appellant v. SUNNY T. JOSEPH, Appellee
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Case No. 2003-13095
MEMORANDUM OPINION
In this suit affecting the parent-child relationship, Cicily Joseph moved to modify Sunny Joseph's child support, alleging that he fraudulently misrepresented his income during mediation of the child support issue and consequently should be ordered to pay additional child support. After the trial court granted a directed verdict against her, Cicily appealed. In eight issues, she contends that the trial court erred by (1) instructing a verdict, (2) excluding certain evidence, (3) failing to award her interest on "underpaid" child support, (4) failing to award her attorney's fees, and (5) failing to prepare findings of fact and conclusions of law.
We affirm the trial court's judgment.
Background
Because the background of this case is well known to the parties, we do not recite it here in detail; we reference only those facts necessary to the disposition of this appeal. When Sunny and Cicily Joseph divorced, they had three children under the age of eighteen. Based on Sunny's representations about his income, the parties agreed Sunny would pay $550 each month in child support. Cicily later learned, however, that the Texas Comptroller was pursuing Sunny for unreported earnings from a chain of convenience stores. Alleging that Sunny had fraudulently misrepresented his income, Cicily sought to increase Sunny's child support obligation. Sunny denied having unreported income, and the parties proceeded to a bench trial on the issue. At the close of Cicily's evidence, Sunny moved for and was granted a directed verdict on the ground that Cicily failed to present sufficient evidence of a material and substantial change in Sunny's financial circumstances.
Directed Verdict
In her fifth issue, Cicily asserts that the trial court erred by directing a verdict against her. The trial court could direct a verdict if no evidence of probative force raised a fact issue on the material questions in Cicily's modification suit. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) (holding that standard of review for legal sufficiency challenges applies to review of directed verdict). We view the evidence in the light most favorable to Cicily, as the party suffering an adverse judgment. See S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996). The directed verdict for Sunny was proper if (1) Cicily failed to present evidence raising a fact issue essential to her right of recovery or (2) Cicily admitted or the evidence conclusively established a defense to her cause of action. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).
At the commencement of trial, Cicily acknowledged that a single issue was before the court: whether Sunny gave false testimony during the initial divorce proceedings that justified modification of his child support obligations. A 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 date of the order's rendition." TEX. FAM. CODE ANN. § 156.401(a)(1) (A) (West 2010). To determine whether modification of child support is warranted, the 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 trial in the modification suit. In re D.S., 76 S.W.3d 512, 520 (Tex. App.—Houston [14th Dist.] 2002, no pet.). The record should contain both historical and current evidence of the relevant person's financial circumstances. London v. London, 192 S.W.3d 6, 15 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
Reviewing this record in the light most favorable to Cicily, we conclude that she failed to present legally sufficient evidence that Sunny misrepresented his income or that his financial circumstances had improved. Two witnesses testified at trial: Sunny and his son Richard. Although the record does not contain any evidence of the amount of Sunny's income at the time the parties' agreed to $550 in child support, Sunny explained that that amount was all he could afford. In the two years following the initial child-support determination, Sunny earned less than $30,000 working in real estate and as an employee for a chain of convenience stores. The next year, however, Sunny injured his knee and stopped working; he remained unemployed at the time of trial. Sunny denied having any ownership interest in the chain of convenience stores for which he worked and denied being entitled to any greater income than he reported on his tax returns.
As her third issue presented, Cicily separately states a complaint that the trial court made "erroneous evidentiary rulings [that] allowed [Sunny] to evade the truth." The only specific reference to an evidentiary ruling in the argument portions of Cicily's brief, however, appears in that section of her brief addressing the sufficiency of the evidence. There, Cicily cites to a page of the record on which the trial court sustained Sunny's hearsay objection to a letter from the Texas Comptroller, but she has not presented any argument or authority to support her claim that the trial court erred in its ruling. Cicily's evidentiary-rulings complaint is therefore waived for inadequate briefing. See TEX. R. APP. P. 38.1(f)
Richard worked in one or more of the same convenience stores. With respect to the owner of the stores, Richard testified that it "could have been my dad, this guy named Beno or Benew, a guy named Michael, my step mom's brother, and brothers actually, I think. But I know my dad had a percentage in it." Despite being confident that Sunny had some ownership interest in the convenience stores and received a salary, Richard confessed to not having personal knowledge of Sunny's income at the time of trial. Through Richard's testimony, Cicily introduced reports of the convenience stores' sales. But, like Richard's testimony, the reports are not evidence of any amounts Sunny earned. Thus, on this record, we hold that the trial court did not err in directing a verdict against Cicily in her modification suit.
We overrule Cicily's fifth issue, as well as her first, second, fourth, and eighth issues raising other complaints about the directed verdict. Moreover, because we have held that the trial court correctly determined Cicily could not prevail in her modification suit, we also hold that trial court did not err in failing to award Cicily attorney's fees and overrule her seventh issue.
.
Findings of Fact and Conclusions of Law
In her sixth issue, Cicily complains that the trial court failed to file findings of fact and conclusions of law. In a case tried without a jury, any party may request, within twenty days after the judgment is signed, that the trial court prepare findings of fact and conclusions of law. TEX. R. CIV. P. 296. Cicily requested findings of fact and conclusions of law nine days before the trial court signed its judgment, making her request premature. Rule 306c provides that premature requests for findings of fact and conclusions of law shall be deemed filed on the date of, but subsequent to, the judgment. See TEX. R. CIV. P. 306c; Echols v. Echols, 900 S.W.2d 160, 161 (Tex. App.—Beaumont 1995, writ denied). Cicily, however, also prematurely notified the trial court that its findings and conclusions were past due—i.e., she filed her notice of past due findings and conclusions before the expiration of twenty days from the date of the judgment. See TEX. R. CIV. P. 297. Rule 306c does not apply to a prematurely filed notice of past due findings of fact and conclusions of law. See TEX. R. CIV. P. 306c (referencing only motions for new trial and requests for findings of fact and conclusions of law); see also Echols, 900 S.W.2d at 161. "[A] factually incorrect, premature reminder does not serve the purpose for the notice." Gorski v. Welch, 993 S.W.2d 298, 302 (Tex. App.—San Antonio 1999, pet. denied). The record does not indicate that Cicily otherwise timely brought the matter to the trial court's attention. Consequently, Cicily waived her complaint regarding the trial court's failure to file findings of fact and conclusions of law.
Even had Cicily preserved this complaint for our review, we would hold that any error in the trial court's failure to issue findings of fact and conclusions of law is not reversible error. Although "harm to the complaining party is presumed unless the contrary appears on the face of the record," a trial court's "failure to make findings is not harmful error if 'the record before the appellate court affirmatively shows that the complaining party suffered no injury.'" Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (quoting Cherne Indus. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)); Las Vegas Pecan & Cattle Co. v. Zavala Cnty., 682 S.W.2d 254, 256 (Tex. 1984). Here, Sunny moved for directed verdict on a single ground: Cicily's failure to present legally sufficient evidence of a material and substantial change in Sunny's financial circumstances. The record thus overcomes the presumption of harm by making clear the basis for the trial court's directed verdict. Cicily has not explained how she was otherwise prevented from properly presenting her case on appeal. See TEX. R. APP. P. 44.1.
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We overrule Cicily's sixth issue.
Conclusion
Having determined that the trial court did not commit error or that error, if any, has not been preserved for our review, we affirm the trial court's judgment.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.