Eikenhorst v. Eikenhorst

• Decision Date: 25 February 1988
• Docket Number: No. 01-87-00022-CV,01-87-00022-CV
• Citation: 746 S.W.2d 882
• Parties: Ronald Ray EIKENHORST, Appellant, v. Helen Jean EIKENHORST, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 882

746 S.W.2d 882

Ronald Ray EIKENHORST, Appellant, v. Helen Jean EIKENHORST, Appellee.

No. 01-87-00022-CV.

Court of Appeals of Texas Houston (1st Dist.).

Feb. 25, 1988.

Julie May Young, Neely C. Lewis, Dillon, Lewis, Elmore & Smith, Bryan, for appellant.

Kent Caperton, Bryan, for appellee.

Before JACK SMITH, DUGGAN and LEVY, JJ.

JACK SMITH, Justice.

This is a divorce action in which the appellant asserts error by the trial court in its award of child support, division of property, temporary support, and attorney's fees. The granting of the divorce and conservatorship of the children are not contested.

The parties were married in 1976, and at the time of their divorce had two children, ages four and six. The appellant is a medical doctor specializing in radiology. He has incorporated his medical practice and is the sole shareholder in that professional association ("P.A."). He is also a partner with another doctor in two separate partnerships in which each doctor owns 50%. His income from these partnerships flows into his medical corporation. Appellant's gross income at time of trial was approximately $250,000 annually.

The two doctors also formed a corporation for the purpose of purchasing and owning certain medical equipment. One-half of the stock in the corporation was owned by the children of the appellant and the appellee, and the other half by the children of the appellant's partner. Medical equipment owned by this corporation was to be used by hospitals that would pay the corporation surcharges for its use.

The appellee is a registered nurse, and, at time of trial, she was working part-time with a wage rate of $10 per hour.

A final decree of divorce was signed on October 20, 1986, and the appellee was granted a divorce on the grounds of insupportability. Upon the appellant's request, the court filed its findings of fact and conclusions of law, but overruled the appellant's objections to such findings and denied his requests for additional findings. The appellant filed a motion for new trial and a corrected judgment, and although the court overruled his motion, it signed a judgment nunc pro tunc on December 2, 1986. After the appellant's appeal was perfected, the trial court issued temporary orders pending appeal, providing for child support, spousal support, and attorney's fees.

CHILD SUPPORT

In his first 10 points of error, appellant makes various attacks on the amount of child support awarded by the court. In its judgment, the trial court ordered the appellant to make the following child support payments: (1) $3,500 per month through August 1987; (2) $4,500 per month from September 1987, through August 1988; (3) $5,500 per month from September 1988, until the oldest child reaches age 18 or is otherwise emancipated; and (4) $2,275 per month after the oldest child reaches 18 or is otherwise emancipated, and until the youngest child reaches age 18 or is otherwise emancipated.

The appellant asserts that there was no evidence or insufficient evidence to justify: (1) the amount of child support awarded; (2) the automatic increases in child support; and (3) the excessive amount of the child support. He also complains of the trial court's refusal to make additional findings of fact and conclusions of law, and of its failure to consider certain evidence in fixing the amount of child support. He further asserts that the trial court abused its discretion in not considering the overall property division insofar as it affected child support, and in overruling appellant's motion for a new trial based upon newly discovered evidence.

The Texas Supreme Court adopted child support guidelines in June of 1986; however, these guidelines were rescinded in July of 1986, and new guidelines were not issued until February 1987. Because the instant case was tried and final judgment was entered when neither set of guidelines was in effect, we are relegated to prior common law in our consideration of the appellant's complaints.

Under prior common law, the determination of the amount of child support to be paid is left to the discretion of the trial judge. His order will not be disturbed on appeal absent a clear showing of an abuse of discretion. Bible v. Bible, 631 S.W.2d 177, 178 (Tex.App.--Houston [1st Dist.] 1981, no writ).

Factors that should be considered in allocating child support include: (1) the particular needs of the children; (2) their previous standard of living; (3) the financial capability of the spouse ordered to pay child support; (4) any other financial resources available for support; and (5) any other schedules, guidelines, or formulas adopted by the court. Tex.Fam.Code Ann. § 14.05(a) (Vernon Supp.1988).

Evidence adduced at trial indicated that in 1986 the appellant earned approximately $220,000, with an additional $30,000 contributed to his pension plan. Although the appellant's annual income has increased progressively, his work load has increased to the point that it will necessitate adding a new partner to the two partnerships. Initially, this would adversely affect the appellant's income.

The appellee's testimony indicates that total monthly expenses for herself and the two children is approximately $5,200. This amount included future increases for lessons for the children, vacations, gifts, and other entertainment.

A trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them. First Nat'l Bank v. Kinabrew, 589 S.W.2d 137, 146 (Tex.Civ.App.--Tyler 1979, writ ref'd n.r.e.). However, in determining no evidence points, we consider only the evidence and inferences that tend to support the finding, and disregard all evidence and inferences to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985). If there is any evidence of probative force to support the court's finding, the point of error must be overruled and the finding upheld. In re King's Estate, 150 Tex. 662, 664, 244 S.W.2d 660, 661 (1951).

Legal insufficiency points of error must be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by the rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence or (4) the evidence establishes conclusively the opposite of a vital fact. Commonwealth Lloyd's Ins. Co. v. Thomas, 678 S.W.2d 278, 288 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.).

Applying the above standards to the instant case, we conclude that there was sufficient evidence to support the $3,500 monthly child support awarded by the trial court. In fact, the $3,500 per month child support appears to be a conservative award, but for the fact that the trial court also required the appellant to pay all medical, dental, orthodontic, and hospital bills of the children, as well as to keep and maintain medical insurance coverage for the parties' children. In addition, the trial court required the appellant to purchase a decreasing term life insurance policy on his life for the purpose of assuring child support payments in the event of his death. The trial court also required that the appellant pay for all expenses incurred by each child for summer camp.

We find merit to the appellant's assertion that there is no evidence or insufficient evidence to increase the child support payments from $3,500 per month to $4,500 per month commencing September 1987, and from $4,500 per month to $5,500 per month in September 1988. We reach this conclusion because the appellee's testimony of $5,200 monthly expenses included expenses for the appellee as well as the two children. The appellee offered no evidence that would indicate a material or substantial change in expenses during the years of 1987 or 1988. Under such circumstances, we find no evidence or at the most a scintilla of evidence to substantiate the two annual increases of child support in the amount of $12,000 each year.

The appellant also complains that the court did not consider his net income, the overall division of property, or the new tax laws in reaching its decision on the amount of child support to be paid by him. We find no merit to these assertions for several reasons. First, there is sufficient evidence in the record from which the trial court could have reached a conclusion about the appellant's net income. Second, there is nothing in the record that would indicate that the court did not consider the overall property division when it fixed the amount of monthly child support payments. Third, there was no newly discovered evidence or new tax laws or information concerning insurance premiums that the appellant could not have placed into evidence during the course of the trial. In this connection, the appellant's certified public accountant testified during the trial, and his insurance agent testified at the hearing on the appellant's motion for new trial that the appellant had notification from the first day of trial that the appellee would be seeking an insurance policy because the appellee's proposed child support decree included an insurance policy to assure child support payments. Further, he could not have been surprised about the tax consequences of child support payments because he was aware from the time the divorce suit was filed that the appellee was seeking reasonable child support payments. We find nothing in the record that would have precluded the appellant from eliciting evidence concerning insurance policies from his insurance agent or tax information from his accountant during the trial.

Whether a motion for new trial on the ground of newly discovered evidence will be granted or refused is generally a matter left to the sound discretion of the trial court, and its decision will not be disturbed on appeal absent a manifest abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807,...