In re D.S.

• Decision Date: 28 February 2002
• Docket Number: No. 14-00-01457-CV.,14-00-01457-CV.
• Citation: 76 S.W.3d 512
• Parties: In the Interest of D.S.
• Court: Texas Court of Appeals

76 S.W.3d 512

In the Interest of D.S.

No. 14-00-01457-CV.

Court of Appeals of Texas, Houston (14th Dist.).

February 28, 2002.

Daniel E. McCarty, Houston, for Appellants.

Bonnie J. Fitch, Pamela E. George, Houston, for Appellees.

Panel consists of Justices ANDERSON, HUDSON, and FROST.

OPINION

KEM THOMPSON FROST, Justice.

This is a child-support-modification case. Appellant Leslie Shokes challenges the trial court's order denying his motion for modification of child support. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Leslie Shokes and appellee Paula Shokes were divorced in 1987. Leslie and Paula had one child together, a daughter, D.S., who was two years old at the time of her parents' divorce. The original divorce decree provided that Paula would be the child's managing conservator and required Leslie to pay $275 in monthly child support.¹

Both Leslie and Paula are medical doctors. In 1996, they entered into an agreement modifying Leslie's child-support obligation in the original divorce decree. They memorialized the agreement in an agreed order. Each of their attorneys signed the agreed order and, at their request, the trial court entered the order. The agreed order required Leslie to pay $500 per month in child support beginning on October 1, 1996, and that amount was to increase to $1,500 per month, effective September 1, 1999. The 1996 agreement was structured so that Leslie could make relatively small child-support payments in the first three years, while he was completing his orthopedic residency, and then pay a significantly higher amount after he completed his residency. The plan was to minimize Leslie's child-support obligation during the three-year period he was completing his residency requirements and making a lower wage, and then to increase it substantially to coincide with his anticipated entry into a much more lucrative private practice as an orthopedic surgeon. Under the 1996 agreement, Paula agreed not to seek an increase in child support throughout the three-year period (1996-1999). Paula honored her agreement not to seek an increase.

In November 1999, Leslie filed a motion to modify his child-support obligation as set out in the 1996 agreed order, arguing that despite his earlier agreement, his salary was not sufficient to enable him to pay the additional $1,000 per month that went into effect in September 1999. In May 2000, after a trial on Leslie's motion for modification, the trial court entered an order denying Leslie any relief. Leslie now appeals, contending in six separate issues that the trial court abused its discretion in refusing to modify his child-support obligation as set out in the 1996 agreed order.

II. ISSUES PRESENTED ON APPEAL

In his first three issues, Leslie argues the trial court should have granted the modification because (1) the order is unenforceable as it provides for arbitrary automatic increases not based on the actual needs of the child and is speculative as to his anticipated future income; (2) there is uncontroverted evidence that shows, as a matter of law, that there is a material and substantial change in the circumstances; and (3) there is uncontroverted evidence that shows, as a matter of law, that he met the requirements of section 156.401(a)(2) of the Family Code, justifying a modification in child support. In issues four through six, Leslie contends the trial court abused its discretion by (4) refusing to file child-support findings as required by section 154.130 of the Family Code; (5) finding that it had no authority to alter the 1996 agreed order; and (6) failing to apply the guidelines of section 154.128 and section 154.129 of the Family Code, for computing support for children in more than one household, as mandated by section 156.406.

III. STANDARD OF REVIEW

We review a trial court's order setting or modifying child support under an abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (per curiam). The test for abuse of discretion is whether the court acted arbitrarily or unreasonably, that is, without reference to guiding rules and principles. Id. In making this determination, we must view the evidence in the light most favorable to the trial court's actions and indulge in every legal presumption in favor of the judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied). We do not treat allegations of legal and factual insufficiency as independent grounds of error in this context because the appropriate standard of review is abuse of discretion. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). A trial court abuses its discretion as to legal issues when it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

IV. ANALYSIS

A. Is the 1996 Agreed Order enforceable?

Leslie argues in his first issue that the 1996 order is unenforceable because (1) it lacks contract language; and (2) it provides for automatic increases and is not based on either the needs of the child or Leslie's salary.

Leslie has failed to properly brief his argument that the 1996 order is unenforceable because it lacks contract language. In order to avoid waiver of an issue on appeal, a party must discuss in his brief the facts and the authorities upon which he relies to maintain the issue. McPherson Enters. v. Producers Coop. Mktg. Ass'n, Inc., 827 S.W.2d 94, 96 (Tex. App.-Austin 1992, writ denied); see also Clone Component Distribs. of Am. v. State, 819 S.W.2d 593, 597 (Tex.App.-Dallas 1991, no writ) (finding that appellant's brief must include page references to record citations of authorities relied upon, and discussion of facts to support point at issue). A party waives a point by failing to provide supporting argument and authorities. McPherson, 827 S.W.2d at 96. Leslie has not provided any record cites or authority to support his position, and therefore has waived this argument.

Moreover, neither of the challenges Leslie makes to the propriety of the 1996 agreed order is permissible in this appeal. The agreed order states in pertinent part:

IT IS HEREBY ORDERED, pursuant to the parties' agreement, that child support paid by LESLIE K. SHOKES to PAULA GILDA SHOKES, be increased to five hundred dollars ($500.00) a month beginning on October 1, 1996, and increased to fifteen hundred dollars ($1,500) a month beginning on September 1, 1999.

Notably, the trial court did not issue a new support order, but merely declined to modify the 1996 order. Leslie failed to challenge the 1996 order by direct appeal at the time it was entered, and the time for doing so has long passed. Therefore, Leslie's attempted collateral attack on the 1996 order fails.

In an effort to escape the fatal effect of a collateral attack, Leslie cites In the Interest of J.M. and G.M., 585 S.W.2d 854, 856 (Tex.App.-San Antonio 1979, no writ). In J.M and G.M., the original divorce decree provided for child support based on automatic increases. Id. Two years later, when it was time to start paying the increased support, the father filed a motion to modify, requesting a reduction in child support. Id. The trial court found that circumstances had materially changed and entered an order modifying the original child support. Id. The San Antonio court affirmed and found that the trial court did not abuse its discretion in modifying the child-support order. Id.

We reject the notion that an order not challenged by direct appeal is subject to collateral attack in a subsequent proceeding. Once child support is set, even with automatic increases, and no appeal is taken, the child support is fixed until modified upon application. See In the Matter of the Marriage of Vogel, 885 S.W.2d 648, 651 (Tex.App.-Amarillo 1994, writ denied). Thus, one can not collaterally attack an order he never appealed; however, he may seek modification of his child-support obligation. If and when he does so, it is then within the trial court's discretion to determine whether there has been a sufficient change in circumstances to justify a reduction or modification in child support.

The case of In the Matter of the Marriage of Vogel is instructive. See id. In Vogel, appellant challenged an order modifying a prior child-support order contained in the divorce decree. Id. The court found that the divorce decree containing the child-support order was rendered in an action within the trial court's jurisdiction and approved as to form and substance by the parties' attorneys. Id. The court further found that no direct appeal was taken from this order and the time for appeal had passed. Id. The court expressly refused to follow In the Interest of J.M and G.M. because to do so would allow an impermissible collateral attack on the original order. Id. This case is analogous in several respects.

First, in 1996, Leslie and Paula agreed to modify the original support order in the divorce decree to increase Leslie's child-support, and the trial court expressly found this agreement to be in the child's best interest. Second, Leslie's attorney, in his presence, expressly approved and signed the 1996 agreed order as to form and substance. Despite these unequivocal expressions of his agreement to the terms of the 1996 order, Leslie alleges that, because he did not personally sign the order, it is unenforceable. We find no merit in this argument.

Every reasonable presumption will be indulged in favor of a settlement made by an attorney duly employed. See Dodson v. Seymour, 664 S.W.2d 158, 161 (Tex.App.-San Antonio 1983, no writ). Once the trial court renders an agreed judgment, a party may not withdraw his consent if the trial court was unaware of any objection at the time of rendition. First Heights Bank, FSB v. Marom, 934 S.W.2d 843 (Tex.App.-Houston [14th Dist.] 1996, no writ). Here, the trial court, acting at the instance and request of both parties' counsel, approved and entered the 1996 agreed order. The trial...