In re A.B.A.T.W.
| Decision Date | 19 September 2008 |
| Docket Number | No. 05-07-00953-CV.,05-07-00953-CV. |
| Citation | 266 S.W.3d 580 |
| Parties | In the Interest of A.B.A.T.W., A.A.L.W., and A.B.C.W., Minor Children. |
| Court | Texas Court of Appeals |
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
Richard Wells (Father) appeals the trial judge's order increasing the amount of his child support obligation. In three issues, Father contends the trial judge abused her discretion because the evidence does not support (1) a substantial or material change in the circumstances of the children or a person affected by the original child support order; (2) the amount of child support awarded by the trial judge; or (3) a retroactive award of child support.
Father and Amanda Wells Jones (Mother) were divorced on January 10, 2001. The divorce decree suspended Father's child support obligation while Father was incarcerated, but ordered that on the thirtieth day of Father's release or parole from any federal or state penitentiary and halfway house, Father was to begin making monthly child support payments of thirty percent of his net monthly income or of the federal minimum wage for a 40-hour week, whichever was greater.
Father testified he had been convicted on both state and federal charges of "misapplication, misapplication of trust funds, bank fraud and a shell corporation." He was released from the federal penitentiary in 1999 and from the state penitentiary in either August or September of 2002. After his release, Father began working for Latham Roofing.
On November 5, 2002, Mother filed a petition to modify the parent-child relationship, alleging there had been a material and substantial change in the circumstances of the children or a person affected by the previous child support order and seeking an increase in Father's child support obligation. Father filed his answer to the petition on December 4, 2002.
Also in December 2002, Father was issued twenty percent of the shares of Eclat Private Equity, Inc., a corporation owned by Father and his mother. Eclat owns Eclat Roofing. Father admitted Eclat Roofing's website indicated he is president of Eclat and Eclat runs a restaurant, bowling alleys, a sports bar, a roofing company, and real estate management and investment companies.
During the last four months of 2002, Father earned gross receipts of $10,500 from his employment at Latham Roofing. Between January 1, 2003 and late June or early July, Father earned gross receipts of $69,693.21 from his employment. In mid-2003, Father quit his job and began working for Eclat. Father admitted he could have continued to work for Latham Roofing and earned another $69,000 for the last six months of 2003. However, Father claimed the $69,693.21 was actually earned by Eclat, but was reported on Father's social security number because Eclat did not have a tax number.
Eclat paid Father $500 per week. Periodically, when Eclat did not have sufficient revenue, Father worked for the restaurant or for one of the bowling alleys owned by his mother and several other people. Regardless of whether Father worked for Eclat, the restaurant, or the bowling alleys, Father earned $500 per week from mid-2003 through the trial in February 2007.
Mother testified Father picks up the children in a late-model Mercedes S-Class sedan or a Range Rover. Mother does not know who owns the vehicles. Father testified his girlfriend owned a Range Rover that he was allowed to drive. In December 2006, Eclat purchased a Land Rover for $52,185. Eclat also purchased a 2000 Mercedes for $38,900 and a Ford pickup for $36,000. However, Father's son was in a wreck in the Ford and the vehicle was totaled by the insurance company.
Mother also testified Father keeps a "substantial amount of cash" in his pocket. When Mother asked Father to pay extra child support, he responded he could not "give [her] more money without reporting to the court officer and to the other individuals to whom he pays restitution more money." According to Mother, Father indicated he could not pay her more money without paying everybody more money. Father testified he did not keep a substantial amount of cash, but periodically withdrew a "couple of hundred" dollars from an ATM for his personal use.
Mother introduced charges on Eclat's credit card of $50,900 that she believed were for Father's personal expenses. Mother testified some of the charges were for Father taking the children to dinner. Mother has no knowledge about what was purchased in a number of the charges to Wal-Mart, Hobby Lobby, PetCo, Wal-Greens, and other merchants listed on the credit card statements. Mother believes a diamond ring was purchased at Dallas Gold and Silver using Eclat's credit card. She also believes a charge to a nail salon had nothing to do with the roofing business. Mother has no knowledge of who made any particular charge.
Father testified the charges on Eclat's credit card were business expenses. Father did not know whether he made any specific charge or whether a charge was made by his mother or an independent contractor working for Eclat to whom his mother issued a credit card. Further, Father's son, who attended school in Lubbock, made charges on Eclat's credit card after talking to Father's mother about the expenses. As to the charge to Mercedes Benz in Lubbock, Father admitted that company did not sell building supplies. There were additional charges in Lubbock that were also likely made by his son. Father also conceded the restaurants listed on the credit card statements did not sell roofing supplies. Father was not sure about whether three charges at a liquor store were for a business party.
When questioned about checks written on Eclat's bank account, Father testified he is not allowed under his parole conditions to have a bank account. Father's mother wrote all the checks on the Eclat account. One of the checks for $841.00 was probably for the Mercedes in his mother's and his son's name. He "imagined" the check for $4,862 to his ex-girlfriend was for the partnership in the restaurant. A check for $1,500 written to Richard Wells in August 2003 would have been to his son. Father claimed checks for $900 to Seay Tennis Center, $211 to Providence Music Academy, $200 to Jay Rock's Gym, and $200 to Highland Park Gymnastics were for donations for the children. However, the evidence reflects Eclat wrote monthly checks to Providence between August 2003 and December 2003 and to Jay Rock's Gym between August 2003 and November 2003. The checks were for various amounts, including $211.95, $182.35, and $107 to Providence.
Father testified his criminal conviction made it impossible for him to work for any company that was not owned by family or people who are aware of his situation. Father has a degree in economics and earned a masters of business administration after he was released from the penitentiary. However, he asserts even the advanced degree had not assisted him in obtaining a higher paying position. Father did not testify about any specific position he had applied for and did not receive.
Father currently lives with his wife in Grapevine, but had lived with his mother in Rockwall. Father did not pay his mother rent, but performed all of the maintenance on the house. Father testified he was not attempting to avoid paying additional child support.
The trial court granted the petition to modify and ordered Father to pay child support of $1,500 per month. Father appealed.
The trial judge has broad discretion in setting or modifying child support payments, and we will reverse the trial judge's order only if it appears from the record as a whole that the trial judge abused her discretion. In re J.D.D., 242 S.W.3d 916, 919 (Tex.App.-Dallas 2008, pet. denied). A trial judge abuses her discretion when she acts in an arbitrary and unreasonable manner, or when she acts without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Garner v. Garner, 200 S.W.3d 303, 306 (Tex.App.-Dallas 2006, no pet.).
Under the abuse of discretion standard, legal and factual insufficiency issues are not independent grounds of error, but are relevant in assessing whether the trial judge abused her discretion. J.D.D., 242 S.W.3d at 920. We review the evidence in the light most favorable to the order and indulge every presumption in favor of the trial judge's ruling. J.D.D., 242 S.W.3d at 920. If some probative and substantive evidence supports the order, there is no abuse of discretion. Garner, 200 S.W.3d at 306. Because there are no findings of fact or conclusions of law, the trial judge's order must be upheld on any legal theory that finds support in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (per curiam); J.D.D., 242 S.W.3d at 920.
The trial judge may modify a previous child support order if "the circumstances of the child or a person affected by the order have materially and substantially changed" since the date of the order's rendition. Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 19, 2005 Tex. Gen. Laws 3148, 3154 (amended 2007) . The trial court may consider the child support guidelines in chapter 154 of the family code in determining whether there has been a material or substantial change of circumstances. TEX. FAM.CODE ANN. § 156.402(a) (Vernon 2002). If the amount of ordered child support does not substantially conform with the guidelines, the trial judge may modify the order to substantially conform with the guidelines if the modification is in the best interest of the child. TEX. FAM.CODE ANN. § 156.402(b). It is presumed a child support payment established by the guidelines is in the best interest of the child. TEX....
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