Garner v. Garner

• Decision Date: 18 August 2006
• Docket Number: No. 05-04-01802-CV.,05-04-01802-CV.
• Citation: 200 S.W.3d 303
• Parties: Timothy Von Eric GARNER, Sr., Appellant v. Ayesha Y. GARNER, Appellee.
• Court: Texas Court of Appeals

200 S.W.3d 303

Timothy Von Eric GARNER, Sr., Appellant v. Ayesha Y. GARNER, Appellee.

No. 05-04-01802-CV.

Court of Appeals of Texas, Dallas.

August 18, 2006.

COPYRIGHT MATERIAL OMITTED

Mellannise Evette Henderson, Law Office of Mellannise Henderson-Love, P.C., Dallas, for Appellant.

Georganna L. Simpson, Law Offices of Georganna L. Simpson, Dallas, for Appellee.

Before Chief Justice THOMAS and Justices WHITTINGTON and WRIGHT.

OPINION

Opinion by Chief Justice THOMAS.

Timothy Von Eric Garner, Sr. appeals a final decree of divorce. In four interrelated issues, appellant complains of the child support award and, in two issues, he contends the trial court erred in entering a finding of a pattern of family violence and in appointing appellee, Ayesha Y. Garner, sole managing conservator of the parties' minor child. For the reasons stated below, we overrule all issues presented. Accordingly, we affirm the trial court's judgment.

Factual Background

The parties were married on March 24, 2001. Prior to the marriage, they had a son, Timothy Von Eric Garner, Jr. Thirteen months after the marriage, appellant filed for divorce. Appellee filed an answer and counter-petition. Following an evidentiary hearing, the associate judge entered temporary orders in which the court made a finding of family violence, appointed appellee temporary sole managing conservator, and ordered appellant to pay temporary child support of $553.79 per month. Appellant did not appeal these rulings.

Approximately two years later, the trial court held a trial on the merits. The decree of divorce provides in relevant part that appellant was intentionally underemployed. The trial court ordered appellant to pay the sum of $553.79 per month in child support and the sum of $300 per month toward the child support arrearage of $12,850.64. Additionally, the trial court found there had been a pattern of family violence by appellant; thus, the decree appointed appellee sole managing conservator. Appellant complains of these findings and rulings.

Child Support

In the first four issues, appellant complains the trial court erred in determining he had available monthly net resources in the amount of $2768.79; finding that he was intentionally underemployed; deviating from the child support guidelines in setting child support; and failing to reduce the amount of arrearages owed under the temporary order. We disagree.

A. Standard of Review

The trial court has wide discretion in determining child support, and we will reverse the order only if it appears from the record as a whole that the trial court abused its discretion. In re E.A.C., 162 S.W.3d 438, 441 (Tex.App.-Dallas 2005, no pet.); Deltuva v. Deltuva, 113 S.W.3d 882, 886 (Tex.App.-Dallas 2003, no pet.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for review, but are relevant in assessing whether the court abused its discretion. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex.App.-Dallas 2004, no pet.). We review the evidence in the light most favorable to the order and indulge every presumption in favor of the trial court's order. Deltuva, 113 S.W.3d at 886. And, if some probative and substantive evidence supports the order, there is no abuse of discretion. Id.

B. Establishing Net Resources, Intentional Underemployment, and Guidelines

Chapter 154 of the Texas Family Code establishes a multiple-step process for determining the amount of child support. The trial court must first determine the parties' gross income, net income, and monthly net resources. And, each party is required to furnish information sufficient to identify the party's net resources and ability to pay support, such as production of copies of income tax returns, financial statements, and pay stubs. After determining the amount of net resources, the trial court must decide whether to apply the child support guidelines or whether application of the guidelines would be unjust or inappropriate. See TEX. FAM.CODE ANN. §§ 154.001-.309 (Vernon 2002 & Supp.2006). Importantly, a parent's child support obligation is not limited to that parent's ability to pay from current earnings; rather it extends to his or her financial ability to pay from any and all available sources. See In the Interest of Striegler, 915 S.W.2d 629, 638 (Tex. App.-Amarillo 1996, writ denied).

Further, a trial court may order a parent to pay child support beyond the amount the parent's income would ordinarily indicate under the guidelines if the parent could potentially earn more money but has intentionally chosen not to. See TEX. FAM.CODE ANN. § 154.066 (Vernon 2002) (intentional unemployment or underemployment). A child support obligor qualified to obtain gainful employment may not avoid his support obligation by voluntarily remaining unemployed or underemployed. Tenery v. Tenery, 955 S.W.2d 337, 340 (Tex.App.-San Antonio 1997, no pet).

For the trial court to make a finding of intentional underemployment or unemployment, there must be evidence the parent reduced his income for the purpose of decreasing his child support payment. In re P.J.H., 25 S.W.3d 402, 405 (Tex. App.-Fort Worth 2000, no pet.); DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.). The requisite intent, or lack thereof, to be underemployed or unemployed for the purpose of determining a child support award may be inferred from such circumstances as the parent's education, economic adversities, business reversals, business background, and earning potential. In re P.J.H., 25 S.W.3d at 406.

In Pharo v. Trice, 711 S.W.2d 282, 284 (Tex.App.-Dallas 1986, no writ), this Court upheld a trial court's order requiring a mother to pay child support even though she was not employed. In that case, the evidence showed the mother was on leave from her job as a flight attendant. Id. When she was working as a flight attendant, the mother earned approximately $1000 a month. Id. However, instead of working, she spent her time researching genealogy, playing tennis, helping friends put together a cookbook, and volunteering for the Dallas County Medical Auxiliary. Id. Further, the mother received $350 a month from an oil and gas lease, owned a Cadillac automobile, and employed a babysitter at a rate of $800 per month. Id. And, she lived in a house paid for by her new husband. Id. We concluded the record contained evidence from which the trial court could have found the mother had sufficient earning potential to enable her to pay child support of $500 per month. Id.

Here, appellant testified he worked as a mortgage associate for Homecomings Financial for two years and earned $13.76 per hour. Although appellant testified he was laid off from his job in August 2002, the company listed his reason for leaving as "resignation." Appellant admitted he accepted "release pay" of $2196.62. He then began accepting assignments from various temporary agencies. Appellant testified that despite his efforts, he had been unsuccessful in finding permanent employment in the two years since he lost his job and that he remained unemployed at the time of trial.

Appellant also testified he was a member of a singing group, which was a family outreach ministry. According to appellant, the group performed at concerts throughout the year. Although promoters paid the group for the performances, the money was used mainly for travel and lodging expenses. There was also evidence that on at least one occasion, promoters paid the group $2500 in addition to paying the lodging expenses. The group also accepted donations. When there was money left over after expenses, it was split among the group members. During the marriage, appellant traveled extensively with the group, and the majority of the travel was outside the State of Texas.

Appellant maintained that his current income was zero. Nevertheless, appellant claimed expenses of $350 per month in rent to his mother; $100 per month for food and household supplies; $331 per month for payments on a 1996 Jaguar; and $384.48 per month for payments on a 1996 Ford van. Appellant estimated his total monthly expenses at $2600.22, but said his mother helps him financially to pay his expenses, including child support. She also helped him by paying $1200 to save his car from repossession.

Appellant also jointly owned with his mother a bus that he valued at $20,000. He further testified that during the pendency of the divorce, he paid his attorneys $3700 out of money he had saved. Although he received more than $2100 at the time he left Homecoming Financial, he admitted that only perhaps $100 to $140 of it went to support his child. Although required to do so by the family code and the temporary orders, appellant produced no financial information to support his claims regarding his income.

As the fact finder, the trial court had the discretion to disbelieve appellant's testimony and was not required to accept appellant's evidence of his income and net resources as true. See Friermood v. Friermood, 25 S.W.3d 758, 760 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Because the trier of fact is in a better position to determine the candor, demeanor, and credibility of the witnesses, we will not substitute our judgment for that of the trial court. See Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 378 (Tex.App.-Dallas 2005, no pet.).

From the evidence, the trial court could have reasonably concluded that in the two years after he lost his job, appellant could have obtained employment that would pay him a salary similar to the one he received from his prior employer. After reviewing the evidence, we cannot say the trial court abused its discretion in finding appellant was intentionally underemployed. Fur...