Giangrosso v. Crosley

Decision Date29 October 1992
Docket NumberNo. 01-91-00947-CV,01-91-00947-CV
Citation840 S.W.2d 765
PartiesPamela Kay GIANGROSSO, Appellant, v. William Randal CROSLEY, Appellee. (1st Dist.)
CourtTexas Court of Appeals

Maurice Bresenhan, Jr., Campbell, Zukowski, Bresenhan & Woods, L.L.P., Houston, for appellant.

Dianne Richards, Houston, for appellee.



O'CONNOR, Justice.

This Court is asked to determine whether a trial court abused its discretion in modifying a child support order. We find that it did not and affirm.

In 1981, the appellant, Pamela Kay Giangrosso, and the appellee, William Randal Crosley, were divorced. In 1982, the court signed a child support order and named William as managing conservator of the two minor children. The order did not require Pamela to pay child support.

In 1990, William filed a motion to modify the child support order, requesting that Pamela pay child support for their child, Ryan. 1 In the final judgment on the motion to modify child support, the trial court ordered Pamela to pay child support in the amount of $335 per month. From that judgment, Pamela appeals.

Fact summary

Presently, William is working as a car salesman without salary, commission only. He previously worked in sales and marketing for several companies. William has had no income for the past four or five months and has supported himself with $9,000 annual income from stock of a Subchapter S corporation, which is a family-owned business. William's present wife is a registered nurse employed by Baylor College of Medicine.

William testified to the changed conditions since he first got custody of the child: Ryan was only two and a half years old then, and now he is 11; Ryan plays sports, which cost about $300 to $400 a year; Ryan is also involved in other extra-curricular activities, which cost money; Ryan needs more clothes now than he did when he was small; Ryan's medical insurance costs $75 per month through William's wife's medical insurance; Ryan needs braces, which are expensive; William would like to send Ryan to summer camp this year; and generally, it costs more to raise an 11-year old than a two- or three-year old.

William offered the following letter from Pamela into evidence which the court admitted:


I want to arrange for monthly weekend visitations, alternating Thanksgiving and Christmas holidays, and three to four weeks during the summer, depending on the end of baseball season, probably four weeks. I want to continue helping with the clothes expenses and special things I know about in advance. I don't want to commit to any court order as I will be in school full time and not working. I would like to agree on something, but if we can't, I will file other lawsuits that will drag on for four or five years. I don't have much interest in doing this but I have less interest in court-ordered child support.

I will be available Sunday night or Monday at [telephone number].



At the time of the hearing, Pamela had not registered for school.

William testified Pamela was qualified to work as a medical technologist. In 1978, she made about $1,000 to $1,100 a month. He said medical technologists make about $25,000 to $30,000 a year now. Pamela has never paid any child support during the nine years William has had custody of the children. She occasionally makes gifts to the children, representing about $200 a year.

Pamela is a high school graduate with three years of college with a major in biology. Pamela was employed before 1983 as a research technician, earning $18,000 a year. Pamela was not employed at the time of the first order. In 1981, she married Dr. Giangrosso, who is a chiropractor and an attorney. In 1988, working 11 months, she earned $18,000. In 1989, Pamela worked in her husband's chiropractic office as the office manager, but she did not take a salary. She testified the office was in bankruptcy; she admitted the going rate for an office manager in 1989 was between $15,000 and $16,000. Her husband's reported gross receipts from his practice for 1988 was about $98,000. Pamela stated she does not want to commit to any court-ordered support, because she plans to be in school full time, although she has not been accepted to any school. Pamela last visited Ryan in December of 1990. The order she challenges by this appeal was signed on July 3, 1991.

1. Child support order

In point of error one, Pamela argues the first order, which did not require her to pay child support, was a contract with William. Thus, Pamela contends William is barred from later seeking any modification.

If a child support agreement specifically provides it will be enforced as a contract, the court cannot modify the terms of support absent proof of the legal prerequisites for modification of a contract: fraud, accident, or mistake. Hoffman v. Hoffman, 805 S.W.2d 848, 850 (Tex.App.--Corpus Christi 1991, writ denied). If a party asks a court to modify a child support agreement that has been incorporated into a court order or decree, however, the court has the authority to do so. Leonard v. Lane, 821 S.W.2d 275, 277 (Tex.App.--Houston [1st Dist.] 1991, writ denied); Hoffman, 805 S.W.2d at 851.

William's motion requested a modification of the court order which was issued after the divorce decree. The motion to modify, thus, goes to the court-ordered support rather than to any contractual agreement the parties might have made. The trial court did not abuse its discretion in modifying the first support order.

We overrule point of error one.

2. Evidence supporting the modification

In point of error two, Pamela argues the evidence is legally and factually insufficient to support the modification of the first order. Pamela contends the evidence is insufficient to support the trial court's decision that there has been a material and substantial change of circumstances or that $335 is the appropriate amount of child support. We disagree.

In reviewing legal insufficiency points of error, we consider only the evidence and inferences that, when viewed in their most favorable light, tend to support the finding and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). If there is more than a scintilla of evidence to support the finding, we must overrule the legal insufficiency points of error. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). 2

In reviewing factual insufficiency points, once we examine all of the evidence relating to a finding, we can only set aside the finding if it is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Glockzin v. Rhea, 760 S.W.2d 665, 666 (Tex.App.--Houston [1st Dist.] 1988, writ denied). We cannot substitute our opinion for that of the trier of fact to determine if we would reach a different conclusion. Glockzin, 760 S.W.2d at 666.

Pamela made no request for findings of facts and conclusions of law under TEX.FAM.CODE ANN. § 14.057 (Vernon Supp.1992) or under TEX.R.CIV.P. 297. At the end of the hearing, the trial court orally announced its findings, but those findings were not incorporated into the child support order, as required by section 14.057, and were not filed as separate findings, as required by rule 297. The appellate courts are not entitled to look to any comments of the trial court at the conclusion of a bench trial as a substitute for findings of fact and conclusions of law. TEX.R.CIV.P. 296; In the Interest of W.E.R., 669 S.W.2d 716, 716 (Tex.1984).

When no findings of fact are filed, the courts imply all the necessary findings to support the judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); In re Estate of Johnson, 781 S.W.2d 390, 391-92 (Tex.App.--Houston [1st Dist.] 1989, writ denied). Implied findings of fact, like the trial court's findings, may be challenged by legal and factual sufficiency points of error. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989).

If there is evidence to support the implied finding of fact, the appellate court must uphold the judgment on any theory of law applicable to the case. W.E.R., 669 S.W.2d at 717; M.R.S. Datascope, Inc. v. Exchange Data Corp., Inc., 745 S.W.2d 542, 544 (Tex.App.--Houston [1st Dist.] 1988, no writ).

A district court may modify the portion of a decree that provides for the support of a child only if the circumstances of the child or a person affected by the decree to be modified have materially and substantially changed since the entry of the decree. Werlein v. Werlein, 652 S.W.2d 538, 540 (Tex.App.--Houston [1st Dist.] 1983, no writ); TEX.FAM.CODE ANN. § 14.08(c)(2) (Vernon Supp.1992). In making its determination, the trial court is given broad discretion in setting and modifying child support payments, and absent a clear abuse of discretion, the trial court's order will not be disturbed on appeal. Billeaud v. Billeaud, 697 S.W.2d 652, 654 (Tex.App.--Houston [1st Dist.] 1985, writ denied).

Here, the record shows the circumstances of the parents and the children have materially and substantially changed since the entry of the original divorce decree. William testified Ryan, who was only two at the time of divorce, is now 11 and more expensive to care for and support. He stated, given his son's age, he must now pay for such increased costs as clothing and sporting activities. This testimony...

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