Hammond v. Hammond

• Decision Date: 27 April 1995
• Docket Number: No. 2-94-064-CV,2-94-064-CV
• Citation: 898 S.W.2d 406
• Parties: Rhonda Reece HAMMOND, Appellant, v. Jeff Favor HAMMOND, Appellee.
• Court: Texas Court of Appeals

Page 406

898 S.W.2d 406

Rhonda Reece HAMMOND, Appellant, v. Jeff Favor HAMMOND, Appellee.

No. 2-94-064-CV.

Court of Appeals of Texas Fort Worth.

April 27, 1995.

Keith Bowman, Bellaire, for appellant.

Richard L. Turner, Mesquite, for appellee.

Before LATTIMORE, LIVINGSTON and DAY, JJ.

OPINION

LIVINGSTON, Justice.

Appellant, Rhonda Reece Hammond, brings this appeal to challenge the trial court's order granting appellee, Jeff Hammond's, motion to modify child support. Appellant contends the evidence is factually and legally insufficient to support the trial court's finding that appellee's circumstances had materially and substantially changed since entry of the divorce decree and agreed order.

We reverse and remand for a new trial.

Jeff and Rhonda Hammond divorced on January 30, 1987. Appellant was appointed managing conservator of the parties' two minor children, and appellee was appointed possessory conservator. The agreed decree required appellee to pay child support and maintain insurance coverage for the children. Child support was set at $300.00 per month per child until September 1987 at which point it increased to $400.00 per month per child.

In May 1993, appellee filed a motion to modify the original divorce decree, seeking primarily a reduction in his child support obligation. A hearing was held on August 4, 1993, where appellee testified that he was unable to pay the child support due to his financial condition. After considering the matter, the trial court determined that appellee's circumstances warranted a reduction in child support. The trial court then signed an order reducing appellee's child support obligation to $202.58 (25% of net resources) per month for both children.

In her sole point of error, appellant contends there is no or insufficient evidence to support the trial court's finding that appellee's circumstances had materially and substantially changed since the entry of the original divorce decree.

A trial court has considerable discretion in setting the amount of child support, a ruling that will not be disturbed on appeal unless the complaining party shows a clear abuse of discretion. MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex.App.--Corpus Christi 1990, writ denied). The trial court is also accorded broad discretion in determining whether the movant has met his burden of proof. Cannon v. Cannon, 646 S.W.2d 295, 297 (Tex.App.--Tyler 1983, no writ). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles; in other words, if the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

The "best interest of the child" is the trial court's primary consideration in determining questions of child support. TEX.FAM.CODE ANN. § 14.07(a) (Vernon Supp.1995). A court may modify a child support order if the circumstances of either the child or a person affected by the order have materially and substantially changed since the date of its rendition. TEX.FAM.CODE ANN. § 14.08(c)(2) (Vernon Supp.1995); see Belcher v. Belcher, 808 S.W.2d 202, 207 (Tex.App.--El Paso 1991, no writ), overruled on other grounds by Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n. 3 (Tex.1993); Baker v. Baker, 719 S.W.2d 672, 674 (Tex.App.--Fort Worth 1986, no writ). To make this determination, the court must compare the financial circumstances of the affected parties at the time the order was entered with their circumstances at the time the modification is sought. Clark v. Jamison, 874 S.W.2d 312, 317 (Tex.App.--Houston [14th Dist.] 1994, no writ); Penick v. Penick, 780 S.W.2d 407, 408 (Tex.App.--Texarkana 1989, writ denied). The moving party has the burden to show the requisite change in circumstances since the entry of the order being modified.

During the hearing on his motion to modify, appellee testified that in September 1992, he suffered from a herniated disk which significantly reduced his ability to work. As a result, his income was drastically reduced. In May of 1993, appellee underwent surgery on his back, preventing him from working for a minimum of ninety days after the surgery. Appellee is self-employed and, other than his business, has no other sources of income. At the time of the hearing, appellee earned approximately $800 per month from his business, after expenses and taxes. The only evidence appellee introduced was an unsigned, unfiled 1992 tax return to document his inability to pay the current child support obligations. Based on this tax return, the trial court apparently calculated appellee's current net resources. Applying the child support guidelines set forth in section 14.055 of the Texas Family Code (enacted subsequent to their original divorce), the court arrived at an adjusted child support obligation of $202.58 per month for both minor children.

Despite appellee's testimony concerning his financial condition at the time of the hearing, he failed to introduce evidence of a substantial and material change in his circumstances since the granting of the original child support order. Appellee testified that he had "a high paying job" at the time of the divorce in January 1987. However, without more specific testimony in the record of how much appellee was making at the time of the divorce, we are unable to make the requisite comparison and determine whether there was a material and substantial change in appellee's circumstances. ¹ See State v. Hernandez, 802 S.W.2d 894, 896 (Tex.App.--San Antonio 1991, no writ) (without some testimony as to how much a party was making at the time of divorce, evidence suggests nothing more than a mere scintilla of evidence that circumstances have materially and substantially changed); Baker, 719 S.W.2d at 676 (a bare assertion that a party was making more money at time of divorce, without some testimony of how much, is no more than a mere scintilla of evidence that circumstances have changed); see also Liveris v. Ross, 690 S.W.2d 60, 61 (Tex.App.--Houston [14th Dist.] 1985, no writ). While the record contains evidence of several financial setbacks suffered by appellee between the time of the divorce and the hearing on his motion to modify, those losses cannot be placed in proper context due to the lack of evidence detailing appellee's complete financial standing at the time of the divorce. Appellee even testified on cross-examination that he provided no evidence of his financial resources as of January 30, 1987. It is therefore impossible to determine whether the alleged setbacks indicate a material and substantial change in circumstances as specifically required by the statute and Liveris or merely reflect fluctuations customary in appellee's personal and business dealings. Id. at 61.

Appellee has failed to meet his burden of proof necessary to support a modification of a child support order. Point of error one is sustained. Accordingly, we hold that the trial court abused its discretion in finding evidence of a material and substantial change in appellee's circumstances and, therefore, the trial court's judgment is reversed and remanded for a new trial.

LATTIMORE, Justice, dissenting.

Because there is some probative evidence to support the trial court's decision to modify Jeff Hammond's child support obligation, I respectfully dissent.

When, as in this case, a party seeks to modify child support under TEX.FAM.CODE ANN. § 14.08, the movant must show a material and substantial change in circumstance that warrants modification. TEX.FAM.CODE ANN. § 14.08(c)(2) provides, in relevant part that:

(c) After a hearing, the court may modify an order or a portion of a decree that:

....

(2) provides for the support of a child if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the date of its rendition....

TEX.FAM.CODE ANN. § 14.08(c)(2) (Vernon Supp.1995). In other words, the movant must bring forth some probative evidence that the circumstances since entry of the last support order have materially and substantially changed. If this evidentiary threshold is met, the trial court may modify the previous order. Modification of the prior child support order lies within the trial court's sound discretion. MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex.App.--Corpus Christi 1990, writ denied); Cannon v. Cannon, 646 S.W.2d 295, 297 (Tex.App.--Tyler 1983, no writ). Of course, the best interest of the child is paramount. See TEX.FAM.CODE ANN. § 14.07(a) (Vernon Supp.1995).

In the instant case, Jeff Hammond, as obligor, had the burden to show that his circumstances had materially and substantially changed since rendition of the January 30, 1987 divorce decree. During the hearing on his motion to modify, Jeff gave numerous examples of material and substantial changes in his financial condition. For example, in September of 1992, Jeff suffered from a herniated disk which significantly reduced his ability to work ¹ and, consequently, his income; in May of 1993, Jeff underwent surgery on his back, preventing him from working for a minimum of ninety days thereafter; Jeff is currently self-employed and, other than his business, has no other sources of income; during his recovery, Jeff employed an individual specifically to operate the business which, due to a loss of accounts, only covered loans and operating expenses; as of the time of the hearing, Jeff paid himself approximately $800 per month from the business, after expenses and taxes; Jeff introduced an unsigned, unfiled 1992 tax return to document his income status at the time of the hearing; ² and Jeff has no other assets. The trial court found that Jeff's decreased income constituted a material and substantial change in circumstances and granted a modification.

Rhonda Hammond...