Hardin v. Hardin

• Citation: 161 S.W.3d 14
• Decision Date: 27 January 2005
• Docket Number: No. 14-03-00342-CV.,14-03-00342-CV.
• Parties: James D. HARDIN, Appellant, v. Charlotte L. HARDIN, Appellee.
• Court: Supreme Court of Texas

161 S.W.3d 14

James D. HARDIN, Appellant, v. Charlotte L. HARDIN, Appellee.

No. 14-03-00342-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

June 24, 2004.

Rehearing Overruled January 27, 2005.

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James D. Hardin, Houston, pro se.

Charlotte L. Hardin, Katy, pro se.

Panel consists of Justices EDELMAN, FROST, and GUZMAN.

OPINION

EVA M. GUZMAN, Justice.

In eleven issues, appellant, James D. Hardin ("James"), challenges the trial court's order denying his petition to modify child support. The appellee, his former wife, Charlotte L. Hardin ("Charlotte"), did not file a brief.¹ Finding no error, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

James and Charlotte entered into an Agreed Final Decree of Divorce (the "Decree") which was signed by the court on October 3, 2001. Per their agreement, Charlotte and James were appointed joint managing conservators of their minor child and James was ordered to pay $800 per month in child support.²

On November 29, 2001, less than two months after the Decree was approved and entered by the court, James filed a petition to modify the parent-child relationship.³ On November 11, 2002, at the conclusion of a bench trial, the court orally denied the requested modification of child support and awarded Charlotte attorney's fees.

On November 22, 2002, the trial court signed its final judgment. Thereafter, James filed a request for findings of fact and conclusions of law on December 3, 2002, and a notice of past due findings of fact and conclusions of law on January 8, 2003. The trial court did not file the requested findings. This appeal ensued.

II. ISSUES PRESENTED

On appeal, James argues the trial court abused its discretion by (1) not filing child support findings under section 154.130 of the Family Code and under Texas Rules of Civil Procedure 296 and 297; (2) refusing to modify the amount of child support ordered in the Decree; (3) awarding attorney's fees without pleading, notice, evidence, or hearing; (4) awarding attorney's fees without regard to section "156.123" of the Family Code; (5) awarding attorney's fees without a specific finding under section 156.005 of the Family Code; (6) awarding attorney's fees as child support; (7) admitting inadmissible hearsay; and (8) allowing his attorney to withdraw. James also contends the trial court erred by (1) failing to give him notice of the November 22, 2002 order denying the requested modification of child support; (2) permitting an assistant attorney general to participate in the case; and (3) breaching Canon 3(B)(8) of the Code of Judicial Conduct.

III. STANDARD OF REVIEW

Generally, unless the complaining party can demonstrate a clear abuse of discretion, orders arising from a suit affecting the parent-child relationship will not be disturbed on appeal. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); In re D.S., 76 S.W.3d 512, 516 (Tex.App.-Houston [14th Dist.] 2002, no pet.). A court abuses its discretion when it acts arbitrarily, unreasonably, or without regard to guiding rules or principles. McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex.App.-Houston [1st Dist.] 1999, no pet.). In determining whether an abuse of discretion has occurred, we view the evidence in a light most favorable to the court's decision and indulge every legal presumption in favor of its judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied). When a court fails to analyze or apply the law correctly, it abuses its discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). An allegation of legal or factual insufficiency is not treated as an independent ground of error in this context because the appropriate standard of review is abuse of discretion. In re D.S., 76 S.W.3d 512, 516 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

IV. ANALYSIS

We address James's second and third issues first because our disposition of those issues impacts our analysis of James's first and eighth issues, which we address together. For clarity, we next address James's fourth issue relating to notice of the trial court's judgment and then his remaining issues.

A. Did the trial court abuse its discretion in failing to file child-support findings?

1. Findings Under Family Code Section 154.130

In his second and third issues, James argues the trial court abused its discretion because it did not make required findings under section 154.130 of the Family Code.⁴ Findings by the trial court under section 154.130 of the Family Code are required only when the amount of child support ordered or rendered by the court varies from the guidelines. TEX. FAM. CODE ANN. § 154.130(a)(3) (Vernon 2002); In re D.S., 76 S.W.3d at 522. Here, the court simply denied James's request to modify the support obligation set out in the Decree; it did not issue or render a new child-support order.⁵ Therefore, no findings were required and the trial court did not abuse its discretion in failing to make findings under section 154.130. See In re D.S., 76 S.W.3d at 522; Terry v. Terry, 920 S.W.2d 423, 425-26 (Tex.App.-Houston [1st Dist.] 1996, no writ) (holding because trial court did not set or modify the amount of child support, findings were not required even though requested).

2. Findings under Rules 296 and 297

James also contends the trial court should have filed findings of fact and conclusions of law pursuant to Texas Rules of Civil Procedure 296 and 297. Rule 296 requires an initial request for findings to be filed within twenty days after a judgment is signed; Rule 297 requires the court to file its findings within twenty days of the initial request. TEX. R. CIV. P. 296, 297. If the court fails to timely file findings, the party requesting the findings must file a reminder request within thirty days of the date the original request was filed. TEX. R. CIV. P. 297.

Here, the trial court signed the final order on November 22, 2002. James filed a request for findings of fact and conclusions of law on December 3, 2002. James filed a notice of past due findings of facts and conclusions of law on January 8, 2003. Because the notice was filed more than thirty days after December 3, 2002, it was untimely. Therefore, his complaint that the court failed to issue its findings and conclusions is waived on appeal due to his failure to file the notice in a timely manner. See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255 (Tex. 1984). Accordingly, we overrule appellant's second and third issues and proceed under the presumption that the trial court found all facts necessary to support its judgment. See Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex.App.-Houston [14th Dist.] 1994, pet. denied) (noting that if there are no findings of fact or conclusions of law filed, all findings necessary to support the judgment, supported by the record, will be implied). However, we may review any implied findings for sufficiency of the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002).

B. Did the trial court err by allegedly failing to give James notice of its judgment?

In his fourth issue, James asserts the trial court failed to give him notice of the November 22, 2002 order denying modification of child support until December 3, 2002, in violation of Texas Rule of Civil Procedure 306a(3). We find no evidence in the record to support James's claim. Nor do we find that this alleged error was brought to the trial court's attention. See Tex.R.App. P. 33.1(a). Therefore, we overrule James's fourth issue.

C. Did the trial court abuse its discretion by refusing to modify James's child support obligation?

In his first issue, James contends the trial court erred in refusing to modify the amount of child support set forth in the Decree because the evidence showed he did not have sufficient net resources to justify that amount under the child support guidelines. In his eighth issue, James asserts he presented legally and factually sufficient evidence of a material and substantial change in circumstances, thereby warranting a decrease in child support. We disagree.

To prevail on a motion to modify support, the movant must show (1) that the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of: (a) the date of the order's rendition; or (b) the date the settlement agreement which the order is based on was signed; or (2) three years have elapsed since the order was rendered or last modified, and the child support award differs by either twenty percent or $100 from the amount that would be awarded in accordance with the child support guidelines. See TEX. FAM. CODE ANN. § 156.401(a)(1)-(2) (Vernon Supp.2004). In determining whether a modification of support is necessary, the trial court should examine and compare the circumstances of the parents and any minor children at the time of the order, with the circumstances existing at the time modification is sought. In re D.S., 76 S.W.3d at 520. On review, we allow the trial court broad discretion in setting child-support payments and in modifying those payments. Id.

When ruling on a requested modification, the trial court may consider, among other factors: (1) the needs of the child; (2) the ability of the parents to contribute to the child's support; (3) any financial resources available for support; and (4) the amount of possession of and access to the child. TEX. FAM. CODE ANN. § 154.123 (Vernon 2002). The parties should present evidence to the trial court of the parents' and/or the child's financial circumstances and needs, both at the time of divorce and at the time of the modification hearing. See Farish v. Farish, 921 S.W.2d 538, 541 (Tex.App.-Beaumont 1996, no writ).

James argues there has been a material and substantial change in circumstances since the time of the divorce because: (1) he changed jobs and...