Baucom v. Crews

• Citation: 819 S.W.2d 628
• Decision Date: 06 November 1991
• Docket Number: No. 10-90-211-CV,10-90-211-CV
• Parties: Beecher BAUCOM, Appellant, v. Hazel CREWS, Appellee.
• Court: Court of Appeals of Texas

Page 628

819 S.W.2d 628

Beecher BAUCOM, Appellant, v. Hazel CREWS, Appellee.

No. 10-90-211-CV.

Court of Appeals of Texas,

Waco.

Nov. 6, 1991.

Rehearing Denied Dec. 4, 1991.

Stanley Rentz, Waco, for appellant.

Donald E. Raybold, Clark, Malone, Knapp & Raybold, P.C., Waco, for appellee.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

Beecher Baucom appeals the award of a lump-sum child-support payment of $12,602.59. Baucom complains of the legal and factual sufficiency of the evidence to support various fact findings made by the trial court. He also contends that the court abused its discretion in applying the statutory child-support guidelines to determine the lump-sum award and that the award was excessive. Finally, Baucom complains that the court erred in awarding support retroactively based on funds received prior to the filing of the motion to modify and prior to the beginning of the calendar year. We affirm the modification order and the lump-sum award.

Beecher Baucom and Hazel Crews (formerly Hazel Baucom), parents of a twelve-year-old daughter, were divorced in July 1989. In July 1990, Crews filed a motion to modify, requesting an increase in child support and a lump-sum award. Baucom responded with a motion to modify, alleging a change in circumstances and requesting a reduction in child support. The court found that Baucom was $1,800 in arrears and ordered that current child-support payments be withheld from Baucom's earnings. The court also found a substantial and material change of circumstances with respect to Baucom's ability to provide support. Therefore, the court reduced the monthly support payment but ordered Baucom to make a lump-sum child-support payment to Crews.

Baucom filed a request for findings of fact and conclusions of law, and the court found that (1) since the time of the divorce Baucom voluntarily became under-employed by choosing to resign from his employment with the railroad; (2) upon his termination of employment with the railroad, he received net lump-sum payments of $63,012.97, which were not anticipated at the time of divorce; (3) he had the ability to make a $12,602.59 lump-sum child-support payment; (4) Baucom's circumstances had materially and substantially changed; and (5) the best interest of the child would be served by reducing Baucom's support obligation from $300 to $205 per month. Baucom requested additional findings of fact and conclusions of laws, most of which the trial court denied.

In points one, two, four, seven, eight, and nine, Baucom challenges the legal and factual sufficiency of the evidence to support various findings of fact made by the trial court. When a complete statement of facts appears in the appellate record, the trial court's fact findings are reviewable for legal and factual sufficiency of the evidence by the same standards which are applied in reviewing the sufficiency of the evidence supporting jury findings. Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.--Dallas 1981, writ ref'd n.r.e.); Gill Savings Ass'n v. Chair King, Inc., 783 S.W.2d 674, 677 (Tex.App.--Houston [14th Dist.] 1989), aff'd in part and modified in part, 797 S.W.2d 31, 32 (Tex.1990). In a no-evidence point, only the evidence and inferences that support the challenged finding will be considered, and all contrary evidence and inferences will be disregarded. Gill Savings, 783 S.W.2d at 677. In a factual-sufficiency point, all of the evidence will be considered and the finding will be set aside only if the evidence is so weak or the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

Baucom complains in points one and two that there is no evidence, or factually insufficient evidence, of "good cause shown" to support the lump-sum child-support award. Section 14.05(a) of the Texas Family Code ¹ provides:

The court may order either or both parents to make periodic payments or, for good cause shown, order a lump-sum payment or purchase an annuity, or any combination of periodic payments, lump-sum payments, or annuity purchases for the support of the child....

TEX.FAM.CODE ANN. § 14.05(a) (Vernon Supp.1991) (emphasis added).

The "for good cause shown" provision of section 14.05(a) was added by amendment, effective November 1, 1989. Both parties agree that no cases are available interpreting the good-cause provision of section 14.05(a), and we have found none. As there was no specific finding by the trial court concerning the "good cause" shown in support of the lump-sum award, and because no such finding was requested, we conclude that the trial court found good cause in favor of its judgment. See Lettieri v. Lettieri, 654 S.W.2d 554, 558 (Tex.App.--Fort Worth 1983, writ dism'd); Tom Benson Chevway Rental & Leasing, Inc. v. Allen, 571 S.W.2d 346, 348-49 (Tex.Civ.App.--El Paso 1978, writ ref'd n.r.e.), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979); Tidwell v. Lange, 531 S.W.2d 384, 386 (Tex.Civ.App.--Waco 1975, no writ). However, an implied finding of "good cause" may be challenged by factual-sufficiency and legal-sufficiency points. See Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989).

Crews testified that Baucom had previously refused to make child-support payments through the registry of the court. Baucom testified that his voluntary termination of employment with the railroad resulted in decreased personal earnings, but that he had received significant lump-sum payments from the railroad. He characterized the lump-sum payments as the benefit of a union bargain made with the railroads when the Union Pacific Railroad bought out the Missouri-Kansas-Texas Railroad. Baucom received three payments that he described as a "staying allowance," a "moving allowance," and a severance payment. He acknowledged at trial that he had attempted to hide the funds from Crews and from the court. At the time of trial, Baucom had $39,000 in cash at his house. The evidence supports the implied finding that the lump-sum child-support award was made "for good cause shown." Because the railroad payments were received by Baucom in a lump sum, it was appropriate for the trial judge to award child support in a lump sum. Points of error one and two are overruled.

Baucom complains in point four that the finding of his ability to make a lump-sum payment was "against the great weight and preponderance of the evidence." We first observe that Baucom has mischaracterized the error asserted in point four. When the party without the burden of proof complains of an adverse fact finding, the party should phrase the point of error as "insufficient evidence" to support the finding. Cockrell v. Citizens National Bank of Denton, 802 S.W.2d 319, 324 (Tex.App.--Fort Worth 1990, no writ). Because the Supreme Court has adopted a liberal rule of reference to the construction of points of error contained in appellate briefs (see Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); TEX.R.APP.P. 74(p)), we will consider the "against the great weight and preponderance of the evidence" point as an allegation that the finding is supported by "factually insufficient" evidence. Cockrell, 802 S.W.2d at 324.

However, Baucom has failed to support his fourth point of error with any argument, authorities, or references to the record. Rule 74(d) of the Texas Rules of Appellate Procedure requires references to the record directing the court's attention to the nature of the complaint. TEX.R.APP.P. 74(d). Reference to the record is extremely important in points of error alleging that the finding is factually insufficient to support the finding because this court must review all relevant evidence, both the evidence which supports the finding of fact, as well as evidence which is contrary to the finding of fact. See Neily v. Aaron, 724 S.W.2d 908, 913 (Tex.App.--Fort Worth 1987, no writ). A party asserting error on appeal bears the burden of showing that the record supports the contentions raised and of specifying the place in the record where matters complained of or relied upon are shown. Murrco Agency, Inc. v. Ryan, 800 S.W.2d 600, 607 (Tex.App.--Dallas 1990, no writ). Because Baucom has failed to meet this burden, the asserted error has been waived. See J.B. Custom Design and Building v. Clawson, 794 S.W.2d 38, 41 (Tex.App.--Houston [1st Dist.] 1990, no writ). Point of error four is overruled.

Baucom complains in point seven that there was factually insufficient evidence to support a finding of material and substantial change in his circumstances. Section 14.08(c)(2) provides that after a hearing, the court may modify an order that "provides for the support of a child if the circumstances of ... a person affected by the order ... have materially and substantially changed since the date of its rendition,...." TEX.FAM.CODE § 14.08(c)(2) (Vernon Supp.1991). Baucom himself pleaded that a material and substantial change in his circumstances had occurred sufficient to warrant a decrease in his monthly child-support obligations. His pleadings constitute a judicial admission that there has been a substantial and material change of his circumstances. See Wagner v. Alvarado Independent School District, 598 S.W.2d 51, 53 (Tex.Civ.App.--Waco 1980, writ ref'd n.r.e.). Furthermore, Baucom's testimony regarding the reduction in his income and the lump-sum payments from the railroad constitutes sufficient evidence of a material and substantial change in his financial condition. Additional proof that the circumstances of the child or the managing conservator have also materially and substantially changed is not necessary. See Holt v. Holt, 620 S.W.2d 650, 652 (Tex.Civ.App.--Dallas, 1981, no writ). Point of error seven is overruled.

Baucom complains in points eight and nine that there was no evidence, or factually insufficient evidence, to support the lump-sum award. A point of error in which the assertion is made that the...