In re J.D.D.

• Decision Date: 08 January 2008
• Docket Number: No. 05-06-00463-CV.,05-06-00463-CV.
• Citation: 242 S.W.3d 916
• Parties: In the Interest of J.D.D., B.J.D., and W.G.D., Minor Children.
• Court: Texas Court of Appeals

242 S.W.3d 916

In the Interest of J.D.D., B.J.D., and W.G.D., Minor Children.

No. 05-06-00463-CV.

Court of Appeals of Texas, Dallas.

January 8, 2008.

Craig A. Jackson, Irving, TX, for Appellant.

Barbara Deltuva, Plano, TX, pro se.

Before Chief Justice THOMAS and Justices LANG and MAZZANT.

OPINION

Opinion by Chief Justice THOMAS.

John Deltuva (Father) challenges the trial court's denial of his petition to modify the parent-child relationship requesting a reduction in the amount of Father's child support obligation. We affirm the trial court's order.

Procedural Background

On February 18, 2002, the trial court signed the final divorce decree for Barbara Deltuva and Father, ordering Father to pay $1,800 per month in child support for the parties' three children. The amount of Father's child support obligation was based on the jury's finding Father was capable of earning $125,000 per year. Father appealed contending, among other issues, that the trial court erred in requiring him to pay a fixed amount of child support regardless of the number of children he was supporting. We agreed with Father and remanded the child support issue to the trial court to provide for a reduction in child support in accordance with the child support guidelines as Father's obligation to support each child terminated. Deltuva v. Deltuva, 113 S.W.3d 882, 887 (Tex.App.-Dallas 2003, no pet.) (op. on reh'g). We ruled against Father on his contention the trial court abused its discretion in setting the amount of Father's child support obligation based on the jury's finding Father was capable of earning $125,000 per year. Id. at 886.

Although not in the record, Father filed a petition to modify after remand seeking to reduce his child support obligation. On November 10, 2004, the trial court entered an interlocutory order that reduced Father's child support obligation to $1,500 per month once he was no longer required to support one child and to $1,200 per month after he was no longer obligated to support a second child.¹ The trial court also found Father's incarceration from July 1, 2003 through February 12, 2004 was a material and substantial change of circumstances since the rendition of the divorce decree. Because Father was not capable of paying the ordered child support during his incarceration, the trial court reduced Father's child support obligation to $300 per month for the period of incarceration. In a final order also entered on November 10, 2004, the trial court denied Father's petition, except as set out in the interlocutory order, and ordered the interlocutory order would remain in full force and effect.

On August 4, 2005, Father filed the petition to modify the parent-child relationship at issue in this appeal, again seeking to reduce the amount of Father's child support obligation. At the November 15, 2005 hearing on the petition, Father contended his unemployment constituted a material and substantial change in his circumstances justifying a reduction in his child support obligation.

Factual Background

Father, an optician, owned an optical business for twenty-three years during the marriage. However, following the divorce, Father failed to timely make all ordered child support payments and, on July 1, 2003, was held in contempt of court and confined in the Collin County Jail until February 12, 2004. After his release, Father failed to return the optical business to profitability and closed the business in October 2004. Father then moved to his mother's apartment in a retirement community, but did not pay his mother rent. Father was still living with his mother in November 2005.

Father was unemployed until May 2005, when he began working at a Vision City optical shop making $14.00 per hour. In July 2005, the trial court signed a judgment setting a payment schedule of approximately $350 per month for Father's child support arrearage of $45,300 and spousal maintenance arrearage.²

Father was indicted for criminal nonsupport due to Father's failure to pay child support. See TEX. PEN.CODE ANN. § 25.05(a) (Vernon 2003). Father's criminal trial began on July 25, 2005 and, on July 26, 2005, Father was found guilty of the offense and sentenced to two years' confinement probated for five years, Father was ordered as a condition of probation to immediately pay $5,000 of the back child support to the Child Support Disbursement Unit. Father timely made the ordered payment, but the record does not reflect the source of those funds.³

Father failed to return to work at Vision City following the criminal trial. Father testified he had a nervous breakdown following the criminal proceedings, but also stated on cross-examination that his income from Vision City was insufficient to make the ordered child support payments and the payments on the arrearages. Father's employment records from Vision City indicated Father did not report to work on July 25, July 26, July 27, and July 28, 2005 and did not return telephone calls. Across the top of Vision City's records of Father's employment is written "Job abandonment 7/28/05."

Father testified he reported less than $10,000 in income on his 2004 tax return and had earned less than $6,000 in 2005, all from his work at Vision City. Father denied he was intentionally unemployed in order to avoid paying child support and introduced eight job applications he completed, beginning on July 28, 2005 and continuing through November 7, 2005, seeking jobs that paid from $8.00 to $18.00 per hour. Father testified he received none of the positions and his bankruptcy and felony conviction made it impossible for him to pass a background check in order to obtain employment.

Father has stored property from his optical business at a storage facility since he closed the business in October 2004, and Father's mother has paid the monthly storage costs of $230. In addition to the business property, Father owns a BMW automobile and personal property. Father has not considered selling the property in storage or the automobile and has not attempted to obtain a loan in order to make his child support payments.

Father's mother has paid thousands of dollars in legal fees incurred by Father in seeking to have his child support obligation reduced in order, according to Father, "to get justice, to have the child support based on actual earnings per Texas family law" and to defend and appeal the criminal proceedings. Father testified his legal fees were an "astronomical burden" on his mother. However, Father has not asked his mother to assist him with his child support payments.

The trial court denied the petition and Father appealed.

Standard of Review

The trial court has broad discretion in setting or modifying child support payments, and we will reverse the order only if it appears from the record as a whole that the trial court abused its discretion. Garner v. Garner, 200 S.W.3d 303, 306 (Tex.App.-Dallas 2006, no pet.); In re P.J.H., 25 S.W.3d 402, 405 (Tex.App.-Fort Worth 2000, no pet.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Garner, 200 S.W.3d at 306.

Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error, but are relevant in assessing whether the court abused its discretion. Garner, 200 S.W.3d at 306; Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.-Dallas 2004, no pet.). We review the evidence in the light most favorable to the order and indulge every presumption in favor of the trial court's ruling. Garner, 200 S.W.3d at 306. If some probative and substantive evidence supports the order, there is no abuse of discretion. Id. Because there are no findings of fact or conclusions of law, the trial court'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); Treadway v. Shanks, 110 S.W.3d 1, 5 (Tex.App.-Dallas 2000), aff'd, 110 S.W.3d 444 (Tex.2003).

Modification of Child Support

A. Section 156.402(a)(1)

1. Material and Substantial Change

The trial court 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) (current version at TEX. FAM.CODE ANN. § 156.401(a)(1) (Vernon Supp.2007)). As the movant, Father had the burden to show the requisite material and substantial change in circumstances since the entry of the previous order. Cameron v. Cameron, 158 S.W.3d 680, 682 (Tex.App.-Dallas 2005, pet. denied).

Father contends the trial court abused its discretion in denying the petition to modify because the undisputed evidence at the hearing demonstrated a material and substantial change in Father's circumstances between when the divorce decree was entered and the date of the hearing. However, Father's petition sought to modify the interlocutory order entered by the trial court on November 10, 2004. At the hearing on November 15, 2005, Father's counsel stated Father was requesting the trial court "modify a final order in suit to modify parent-child relationship which was signed by this Honorable Court on November 10, 2004." Father's counsel also objected to the cross-examination of Father about his circumstances at the time of the divorce, "Your Honor, she's talking about the divorce. I'm going to object. Are we talking about November, 2004?" Finally, the trial court understood the focus of Father's petition to be the November 10, 2004 order, stating to Father at the conclusion of the hearing:

Your, position today is not different from what it was a year ago, or when this order was set. You were underemployed then;...