Hearn v. Hearn
| Decision Date | 11 December 1969 |
| Docket Number | No. 461,461 |
| Parties | E. Q. HEARN, Appellant, v. June HEARN, Appellee. . Tyler |
| Court | Texas Court of Appeals |
Howard C. Douglas, Mineola, for appellant .
F. L. Garrison, Gilmer, Flynt & Pickett, James T. Flynt, Mineola, for appellee.
Appellant, E. Q. Hearn, filed suit against appellee, June Hearn for a divorce. His prayer was for a divorce, division of the community property and for a judgment awarding custody of the two minor children to appellee, June Hearn, together with an order requiring him to contribute a reasonable sum for their support. Appellee answered with a general denial and a cross-action in which she also sought a divorce, a division of the community property, custody of the children, together with an order of child support and a reasonable attorney's fee.
After a trial before the court, sitting without a jury, the trial judge entered judgment granting appellee, June Hearn, a divorce, custody of the children, child support in the amount of $150.00 per month for each child, a division of the community property and an attorney's fee in the amount of $400.00. Appellant duly perfected this appeal and complains only of the amount of the child support set by the court, the division of the community property and the award of attorney's fees in favor of appellee.
The record is before us without findings of fact or conclusions of law. Under these circumstances, the court's judgment implies all necessary fact findings in support thereof and in our review, we must consider only that evidence which is most favorable to the judgment and disregard that which is contrary thereto. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Beaird v. Beaird, 380 S.W.2d 730, (Tex.Civ.App., Dallas, 1964, writ ref., n .r.e.). Accordingly, each of the appellant's points of error will be hereinafter considered in light of such rule.
By the first point of error, appellant urges that the trial court abused its discretion in setting the child support payments in the amount of $300.00 a month, $80.00 of which he says was awarded for the purpose of making payment on the home awarded to the appellee.
While the record shows that the trial court awarded appellee $300.00 per month in child support payments, the record fails to bear out the statement that the trial court deemed that a portion thereof was to be used for payments on the home.
The evidence shows that the parties were married on June 30, 1962, and as a result of their marriage, two children were born. During the past 15 years, appellant has been employed as an agent-consignee for Texaco, Inc., selling oil and gas products to service stations and farm accounts. Prior to the separation, appellant drove and operated his own truck and Mrs. Hearn kept the books and records for the business. In 1968, the year immediately prior to their divorce, the gross income from that business amounted to approximately $20,746.65. While the record does not contain any direct evidence as to the exact amount of the expenses involved in the operation of the business, when all the evidence is used in a light most favorable to the judgment, it shows that a major portion of the $20,746.65 amounted to a net profit. Appellant testified, however, that subsequent to the separation in 1969 he had lost two of his accounts thereby reducing his gross income by $1,980.00 per year and as a result of the separation, it was necessary for him to hire a temporary truck driver and a secretary, thereby increasing his operating expenses by approximately $5,800.00 per year. According to his testimony, his net income was only approximately $420.00 per month. He also testified that he was required to pay child support to another child by a previous marriage in the amount of $60.00 per month and that if he is required to pay such an amount in addition to the $150.00 per month for each of the children by the present marriage, it would be impossible for him to meet his own living expenses. He did not, however, introduce any of his business records in support of his testimony. The evidence further shows that Mrs. Hearn is unemployed and has no means to contribute to the support of the children. She testified that the expenses of maintaining and rearing the children in the station and life in which they were accustomed would exceed the sum of $300.00 per month .
In determining the duty of the father to supply necessaries to his children after divorce, it is to be borne in mind that his duty corresponds to his financial ability, having due regard to all of his lawful obligations. Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564 (1921); Brogdon v. Brogdon, 392 S.W.2d 385 (Tex.Civ.App., Fort Worth, 1965, refused, n.r.e.).
The appellate court will not disturb the trial court's child support order unless there is a clear abuse of discretion. Brito v. Brito, 346 S.W.2d 133 (El Paso, Tex.Civ.App., 1961, ref., n.r.e.); Beaird v. Beaird, supra; Brogdon v. Brogdon, supra.
If appellant's testimony showing his net income had been reduced to $420.00 per month be taken as true, it would seem to be obvious that he would be financially unable to make child support payments in the amount of $360.00 per month. However, as stated, he did not offer any of his records or any other evidence in support of his oral testimony. The trial court apparently chose to disbelieve his testimony. As the trier of the fact, the trial court was the sole and exclusive judge of the credibility of the appellant's testimony, especially since he was an interested party and his testimony with respect to his earnings was such that appellee could not easily rebut the same. Brogdon v. Brogdon, supra.
Therefore, in support of the judgment we must presume that the trial court found that appellant's gross income in the future would continue to be approximately the same as that earned by him in 1968, amounting to approximately $20,746.65 and that even though his expenses had increased by approximately $5,800.00 per year, his net profit would still be sufficient to meet his child support payments. When viewed in a light most favorable to the judgment, we think the evidence was sufficient to show that appellant was financially able to pay the sum of $300.00 per month as child support for his two minor children . Consequently we hold that appellant failed to discharge his burden of showing that the amount of child support payments constituted an abuse of discretion.
By the second point, appellant contends that the award of the $400 .00 attorney's fee to appellee is not supported...
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