Escue v. Reed, 08-89-00284-CV

• Decision Date: 18 April 1990
• Docket Number: No. 08-89-00284-CV,08-89-00284-CV
• Citation: 790 S.W.2d 717
• Parties: Gregory Scott ESCUE, Appellant, v. Laurie REED f/k/a Laurie Escue, Appellee.
• Court: Texas Court of Appeals

Page 717

790 S.W.2d 717

Gregory Scott ESCUE, Appellant, v. Laurie REED f/k/a Laurie Escue, Appellee.

No. 08-89-00284-CV.

Court of Appeals of Texas,

El Paso.

April 18, 1990.

Kenneth T. Ward, Houston, for appellant.

J.K. "Rusty" Wall, Midland, for appellee.

Before OSBORN, C.J., and FULLER and KOEHLER, JJ.

OPINION

KOEHLER, Justice.

This is an appeal from an order increasing child support following the hearing on a motion to modify in a suit affecting the parent-child relationship. We reverse and remand.

Appellant Gregory Scott Escue ("Escue") and Appellee Laurie Reed ("Reed") were divorced in the State of California in 1979. There was one child of the marriage, Kimberly Escue, born on February 16, 1975. By terms of the final decree, Reed was named the primary custodian of the child and Escue was given visitation rights and ordered to pay child support of $200.00 per month. Thereafter, Escue remarried and adopted his new wife's son, Kevin Escue. This second marriage ended in divorce rendered in August 1988, as a result of which Escue was ordered to pay $1,200.00 per month for the support of Kevin, who at the time of the trial on this motion was fourteen years of age. During the years of 1982 through 1986, Escue under-reported his income to the total extent of approximately $320,000.00, resulting in an assessment for back taxes, penalty and interest of approximately $161,000.00. As a result of negotiations with the Internal Revenue Service, Escue became obligated to pay $3,127.00 per month. Escue presently operates two entities that sell books to libraries, one a corporation, Lektro, Inc., and the other a proprietorship, Greg Escue & Associates.

On October 12, 1988, Reed filed the motion to modify in this case, alleging that the circumstances of Kimberly had materially and substantially changed since the decree of 1979 and requesting that the child support be increased to the amount indicated by the Child Support Guidelines ("Guidelines") adopted by order of the Supreme Court of Texas, effective February 4, 1987 or $1,200.00 per month. In a non-jury trial, Escue testified that shortly before the commencement of the hearing, he had lost his single largest customer, causing a forty-five percent decrease in his total business and an $11,000.00 drop in his monthly revenues. He also testified that his personal monthly expenses were $6,805.00, which included the $3,127.00 payment to the IRS and the current total monthly child support of $1,400.00 for the two children. He also testified that he was current on all his debts even though his gross income was stated to be from $5,200.00 to $6,000.00 per month and his accountant testified that Escue's take-home pay was $3,329.00. Reed testified, offering an exhibit in support thereof, that the current monthly expenses attributable to Kimberly were $669.83. However, the court, after deducting some of the claimed expenses, found the needs of the child to be approximately $500.00. At the conclusion of the trial, the court ordered that child support be increased to $800.00 per month. In response to a request under Rule 7 of the Guidelines, the trial court found, inter alia, that the amount of Escue's net resources per month was $4,150.92, that the amount of Reed's net resources per month was $1,087.81, that the percentage applied under Rule 5 of the Guidelines was nineteen percent to twenty-three percent, and that the amount of support per month computed under Rule 5 was $788.67 to $954.71.

Escue brings six points of error, challenging certain of the court's findings and its order on both legal and factual sufficiency grounds under Points of Error Nos. One through Four, and in Points of Error Nos. Five and Six, finding fault with the failure of the court to deduct $1,200.00 child support paid for the second child and $3,127.00 paid to the Internal Revenue Service from Escue's income in calculating the monthly "net resources" available for child support percentage purposes.

Under his first two points, Escue avers that there is either no evidence that he has sufficient net resources to pay $800.00 per month child support and that he has monthly net resources of $4,150.92, or the findings to that effect are against the great weight and preponderance of the evidence, or that the finding and order constituted an abuse of discretion. When reviewing a "no evidence" challenge, an appellate court must only consider the evidence and reasonable inferences drawn therefrom, which when viewed in the most favorable light, support the questioned finding, disregarding all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); Alm v. Aluminum Company of America, 717 S.W.2d 588, 593 (Tex.1986). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford, 726 S.W.2d at 16.

When presented with a factual sufficiency point, the court must review all of the evidence and, having done so, may then set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

A review of the record discloses much more than a scintilla of evidence in support of the finding and order. Not only did Escue testify that he had a gross monthly income of between $5,200.00 and $6,000.00, but his accountant, Scott Mitchell, testified that Escue would receive a before payroll taxes gross salary of $51,500.00 from the corporation in 1989. The evidence also showed that he would receive monthly $1,493.00 from his proprietorship. Escue's position is not helped by his motion for new trial to which is attached an affidavit by Mitchell, given to clarify his testimony, in which he states that Escue's income "totals to the sum of five thousand two hundred thirty three dollars ($5,233.00), which represents the available net resources pursuant to the Child Support Guidelines." Without resort to that affidavit, we conclude that there is sufficient evidence to support the finding of Escue's monthly net resources. Points of Error Nos. One and Two are overruled.

We will next consider the third, fourth and fifth points of error. In his third and fourth points, Escue complains that there is no evidence or insufficient evidence to support the findings of the court that the correct percentage under the Rule 5 Guidelines was nineteen percent to twenty-three percent, the range for one child, and that the range of child support after applying those percentages to Escue's net resources was $788.67 to $954.71, when the undisputed evidence was that Escue had two children whom he was obligated to support. In Point of Error No. Five, Escue claims the failure of the court to consider the $1,200.00 monthly child support paid for the other child as a deduction in computing the "net resources," was error. In all three points of error, he urges that the failure of the court to consider the support being paid to the second child constituted an abuse of discretion. An abuse of discretion point of error challenges the trial court's holding on a question of law. Robinson v. Wampler, ...